12. Misconduct

Roberts v Americhem Sales Corp – 12.134

Roberts v Americhem Sales Corp
Digest No. 12.134
Section 421.29(1)

Cite as: Roberts v American Sales, Corp, Unpublished Opinion of the Kent County Circuit Court of Michigan, Issued April 11, 2003 (Docket No. B-2002-06554-16443).

Court: Circuit Court for the County of Kent
Appeal pending: No
Claimant: John D. Roberts
Employer: American Sales Corporation (“ASC”)
Date of decision: April 11, 2003

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HOLDING: “An individual is disqualified from receiving benefits if he or she: … [w]as discharged for … testing positive on a drug test, …,”only if, should the worker dispute that result, a confirmatory test is administered and is also positive under MCL 421.29(1)(m). A claimant cannot be disqualified from benefits if he or she asked for a second test, and no such test was administered.

FACTS: Claimant worked as a sales representative for Americhem Sales Corporation (“ASC”) from June, 2001, through January 25, 2002. His tenure was troubled. He was warned and disciplined several times for poor job performance, failing to follow instructions, and/or insubordination, and by a letter dated January 14, 2002, he was told by the president of ASC that, because of that “continued pattern of behavior,” he would have to submit to drug and alcohol testing, which he did and had tested positive for cocaine. Shortly after, the employment was terminated. Claimant applied for unemployment benefits. When his application was denied, he appealed. A full evidentiary hearing took place, and the referee issued a decision finding, first, that claimant had been discharged solely because of the drug test, not because of poor job performance or disciplinary problems. The employer had claimed otherwise, but the referee was not persuaded. The referee also found that claimant had demanded a confirmatory drug test. He had testified to such a demand, and the employer’s witnesses did “not recall” whether he had asked for another test. Therefore, because ASC had conceded that no second test had been administered, the referee ruled that MCL 421.29(l)(m) barred disqualifying claimant from benefits. The Board of Review affirmed, finding that “the [r]eferee’s decision is in conformity with the facts as developed at the hearing,” and that he had “properly applied the law to the facts.” ASC appealed claiming that both the referee and the Board of Review erred, because the finding that claimant had not been fired for repeated misconduct “completely ignored the evidence of the series of events leading to [c]laimants discharge.”

DECISION: The court affirmed the decision of the referee and the Board of Review.

RATIONALE: While the notice of termination from ASC’s president referred to claimant’s “pattern of behavior of not following instructions,” it was certainly reasonable to read that notice as stating that pattern merely as the justification for having required claimant to submit to a drug test, not as a statement of reasons for his termination. Under 421.29(1)(m), because it could not reverse the findings that claimant “[w]as discharged for … testing positive on a drug test,” that he asked for a second test, and that no such test was administered, let alone was again positive, the court found that Claimant cannot be disqualified from benefits. Giving to the determination of the Employment Security Appeal Board the deference to which it is entitled and the meaningful review to which the parties are constitutionally entitled, the court found that that determination was amply supported by the record and was also legally correct. The court did not apply Miller v FW Woolworth Co, 359 Mich 342 (1960) to this case, because it was convinced that its superior courts would not so apply Miller, as it would require departing from the ordinary meaning of the terms used in MCL 421.29(I)(b) and (1)(m).

Digest author: Toni Suh, Michigan Law, Class of 2020
Digest updated: January 29, 2021

14. Disqualifications - Other

Fowler v Marubeni Metal Blanking – 14.17

Fowler v Marubeni Metal Blanking
Digest No. 14.17

Section 421.29(1)(m)

Cite as: Fowler v Marubeni Metal Blanking, unpublished opinion of the Shiawassee County Circuit Court, issued December 15, 2006 (Docket No. 06-4352-AE).

Appeal pending: No
Claimant: David L. Fowler
Employer: Marubeni Metal Blanking
Date of decision: December 15, 2006

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HOLDING: A claimant cannot be disqualified from receiving benefits for a discharge resulting from the claimant’s refusal to submit to a drug test where the drug test was not administered in an impartial and objective manner.

FACTS: The employer decided to drug test the entire workforce due to a number of unusual occurrences, and because the employer was informed employees were using prescription drugs prescribed to other persons. The employees, including Claimant, were told that if they had a valid prescription and tested positive for that drug they would be okay.

When informed of the employer’s intent to test all employees, Claimant asked to speak with the plant manager. Claimant disclosed that he had taken Vicodin over the weekend from an earlier prescription and didn’t know if the prescription was “valid”. He asked to use his phone because he wanted to call his doctor and see if the prescription was “valid”. His request was denied because the employer was concerned that he might give the later shifts advance notice of the drug testing. No one from the employer was able to clarify what constituted a “valid” prescription. Claimant refused to take the test and was fired.

An ALJ found that Claimant was not disqualified for benefits under Section 29(1)(m)(ii) of the Act. The Board of Review reversed.   

DECISION: The Board of Review’s decision is reversed. Claimant is not disqualified from receiving unemployment insurance benefits under Section 29(1)(m)(ii) of the Act.

RATIONALE: For a claimant to be disqualified under Section 29(1)(m)(ii), he must refuse “to submit to a drug test that was required to be administered in a nondiscriminatory manner”. A claimant’s refusal to submit to a drug test cannot be adjudicated without first determining whether the test was administered in a nondiscriminatory manner. Under Section 29(1)(m)(ii)(C), for a drug test to be administered in a “nondiscriminatory manner”, it must be “administered impartially and objectively.”

Here, Claimant is not disqualified for benefits under Section 29(1)(m)(ii) because the drug test was not administered in a non-discriminatory manner because it was administered subjectively and based on improper information. Claimant made an appropriate request for clarification, and when the employer chose to give unclear and incorrect information, the risk of confusing a worker causing that worker to make a wrong decision was foreseeable. Further, the employer’s explanation to Claimant did not include the fact that Claimant would have the right to dispute the result of the testing.

Digest author: Stephanie Marshak, Michigan Law, Class of 2016
Digest updated: October 29, 2017

14. Disqualifications - Other

Henderson v. Peterman Mobile Concrete, Inc. – 14.18

Henderson v. Peterman Mobile Concrete, Inc.
Digest No. 14.18

Section 421.29(1)(m)

Cite as: Henderson v Peterman Mobile Concrete, Inc, unpublished opinion of the Kalamazoo Circuit Court, issued November 3, 2004 (Docket No. 04-00157-AE).

Court: Circuit Court of Kalamazoo
Appeal pending: No
Claimant: Mickey Henderson
Employer: Peterman Mobile Concrete, Inc.
Date of decision: November 3, 2004

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HOLDING: The Circuit Court upheld a Board of Review decision finding the claimant disqualified for unemployment benefits under 29(1)(m) after testing positive for marijuana on a drug test administered by his employer.

FACTS: Claimant was fired by his employer after testing positive for marijuana on a random drug test.  An Administrative Law Judge found Claimant not disqualified under the misconduct provision of MES 29(1)(b).  The Board of Review then reversed this decision, finding Claimant disqualified under the drug use provision of MES 29(1)(m).  Claimant appealed this decision to the Circuit Court, arguing that 1)  there was insufficient evidence that there was a properly administered test, confirmation, or retest as required by the Act; 2) the employer’s exhibits were admitted without proper foundation and contained hearsay; and 3) the employer violated 29(1)(m) by not providing and paying for a retest.

DECISION:  The Court held that there was sufficient evidence to establish a properly administered drug test, the test results were properly admitted into evidence, and the employer had no obligation to pay for a retest.  On these facts, the Court affirmed the Board of Review hearing and found the claimant disqualified for benefits under 29(1)(m).

RATIONALE: On Claimant’s first argument, the Court found that sufficient evidence existed to support the Board of Review’s finding that the drug test was administered properly and in accordance with federal guidelines for workplace drug testing. On the question of whether a confirmatory test was administered, the Court cited federal guidelines defining a confirmatory test as a “second analytical procedure performed on a urine specimen to identify and quantify the presence of a specific drug or drug metabolite.” 49 CFR 40.3.  Here, testimony from employees of the company hired to administer the test and the lab at which the sample was analyzed supported the employer’s contention that both the test and confirmatory test of the sample were administered in accordance with federal guidelines.

On Claimant’s second argument, the Court found that evidence of the drug testing was properly admitted into evidence.  The Court held that “while some of the testimony supporting the administration of the test was hearsay, it was admissible under Michigan law.  Evidentiary rulings in an administrative proceeding are not the same as those in courts of law; for example, hearsay evidence may be considered if it is commonly relied on by reasonably prudent persons in the conduct of their affairs. Rentz v Gen Motors Com, 70 Mich App 249, 253 (1976).”  The Court found that drug test results are commonly relied on by reasonably prudent employers in the conduct of their affairs, and thus the Board of Review’s decision to admit the supporting documentation into evidence was not in error.

On Claimant’s final argument, the Court found that  “absolutely no law that mandates an employer must pay for the retest. Moreover, this issue is moot because a retest did occur and the results were positive for marijuana.” On these findings, the Court upheld the Board of Review decision finding Claimant disqualified for benefits under 29(1)(m).

Digest author: Laura Page, Michigan Law, Class of 2018
Digest updated: November 26, 2017