Southwood Door Co. v. Burton
| Docket Number: | 2002-CC-00893-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 06-05-2003 Opinion Author: Waller, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Unemployment benefits - Timeliness of appeal - Misconduct - Drug testing - 49 C.F.R. § 40.29 - 49 C.F.R. § 40.33(f)(1) - Section 71-5-513A(1)(b) Judge(s) Concurring: Pittman, C.J., McRae and Smith, P.JJ., Cobb, Diaz, Easley, Carlson and Graves, JJ. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - OTHER |
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| Trial Court: |
Date of Trial Judgment: 05-03-2002 Appealed from: Lauderdale County Circuit Court Judge: Robert Bailey Disposition: Circuit Court reversed the denial of unemployment benefits by the MS Employment Security Commission and awarded Burton benefits. Case Number: 00-CV-126(B) |
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| Party Name: | Attorney Name: | |||
| Appellant: | Southwood Door Company |
TIMOTHY W. LINDSAY |
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| Appellee: | Raymond Burton | STEVEN D. SLADE |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Unemployment benefits - Timeliness of appeal - Misconduct - Drug testing - 49 C.F.R. § 40.29 - 49 C.F.R. § 40.33(f)(1) - Section 71-5-513A(1)(b) |
| Summary of the Facts: | Raymond Burton, a truck driver, was terminated by his employer, Southwood Door Company, after testing positive on a random drug test. Burton sought unemployment compensation benefits which were denied by the Board of Review of the Mississippi Employment Security Commission. Burton appealed to the circuit court which reversed the denial and awarded Burton benefits. Southwood appeals. |
| Summary of Opinion Analysis: | Issue 1: Timeliness of appeal The Board of Review dismissed Burton's appeal as untimely, but the circuit court reversed the Board of Review's dismissal as untimely and remanded for a decision on the merits. Southwood argues that the circuit court's decision to remand Burton's claim was interlocutory and thus not appealable. The original circuit court reverse and remand was not concerned with the merits of Burton's claim but concerned a procedural issue, namely, the timeliness of an appeal and remanded for a decision on the merits. There is not a circuit court determination that the record was insufficient to decide whether the employer had produced enough evidence to support the discharge of its employee. The circuit court's reverse and remand on the issue of timeliness was therefore not interlocutory in nature, and Southwood should have appealed that decision. Issue 2: Misconduct The drug testing of employees like Burton is governed by federal regulations. Pursuant to 49 C.F.R. § 40.29, if the initial test returns a negative result, the test is complete; however, if the initial test returns positive, a confirmation test is conducted. The Medical Review Officer must notify each employee who has a confirmed positive test that the employee has 72 hours in which to request a test of the split specimen under 49 C.F.R. § 40.33(f)(1). For federal purposes, the practical effect of a confirmed test result is that the employee is prohibited from performing safety-sensitive functions. While Burton received notification that he tested positive for marijuana, there is no indication that the MRO contacted Burton directly or informed Burton that he had 72 hours to request testing of his split specimen. An employee is disqualified from receiving benefits under section 71-5-513A(1)(b) for misconduct. Misconduct is conduct evincing such willful and wanton disregard of the employer's interest as is found in deliberate violations or disregards of standards of behavior which the employer has the right to expect from his employee. Southwood has failed to carry its burden of producing clear and convincing evidence of misconduct by Burton. The federal drug testing regulations preempt Mississippi's drug testing statutes, sections 77-7-1 to 71-7-33, and the circuit court erred in applying the state scheme. If an employer wishes to disqualify an employee for unemployment benefits because of a positive result on a federally-regulated drug test, the employer must at least produce clear and convincing evidence that the testing comported fully with the federal regulations. If an employer wishes to disqualify an employee for failing a federally-regulated drug test in which a split specimen was taken, it must produce clear and convincing evidence that the split specimen was reconfirmed positive or that the employee declined to discuss the result with the MRO. Doing so will satisfy the "misconduct" requirement of section 71-5-513A(1)(b). |
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