Thursday, July 18, 2013

UC - drug testing - sec. 402 (e.1) - hearsay

Rutkowski v. UCBR – Cmwlth. Court – July 17, 2013 – unreported memorandum decision

The Court reversed the UCBR and held that claimant was not ineligible under 43 PS sec.  802(e.1), because the employer did not present evidence to qualify a drug testing report (Report) as a business record under 42 Pa. C.S. 6108(b).  Claimant objected to the Report as hearsay during the hearing.

Employer’s witnesses offered no testimony about the testing procedures followed by the Laboratory, such as the equipment used for the test, the testing process, the technician’s qualifications, quality control safeguards, the drug levels tested or the Laboratory’s accreditation. Rather, the witness simply stated that Claimant tested positive for marijuana, and that he was discharged based upon that test.

The Report, a one-page document, is not notarized or verified and contains no information relating to the Laboratory’s testing protocols, nor any statement as to the steps taken by the Laboratory to safeguard the samples. There is no evidence in the Report concerning the reliability of the oral testing method employed in this case, nor any information correlating the concentration of marijuana in the sample to the time elapsed since its ingestion. Put simply, the document does not contain enough indicia of reliability on its face to be admitted as an exception to the hearsay rule.

Employer did not provide sufficient information that would “justify a presumption of trustworthiness of the [Report]” and allow for it to be admitted as part of the record. Id. Without the Report, there was insufficient evidence to support the Board’s conclusion that Claimant failed the drug test.

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.