In this unemployment compensation case the sole issue is whether the Division of Employment Security properly granted unemployment benefits to Todd Weathersby a worker for Bean Dredging Corporation who failed his pre-employment drug screening. Finding in favor of the employee the administrative law Court concluded:

The evidence and testimony presented indicate that the claimant was discharged from his employment because he failed a pre-employment drug screen test. A disqualification for benefits under [La.R.S. 23:1601(10)] is not applicable in this case as the claimant was not actually an employee of the company at the time that the drug use took place. As such the claimant's discharge was not for misconduct connected with the employment. He is entitled to benefits.

Bean Dredging appeals contending that the district court erred in ruling that under La.R.S. 23:1601(10) an employee discharged for failing a pre-employment [Pg 2] drug screen mandated by federal law and company policy is entitled to unemployment compensation benefits. We reverse.

FACTS

Todd P. Weathersby (Weathersby) sought employment with Bean Dredging Corporation (Bean). Bean has a substance abuse poliicy which Weathersby received read and agreed to follow. The policy states in pertinent part:

BEAN prohibits ALL employees and contractors from reporting to work having used illegal or unauthorized drugs or reporting under the influence of alcohol as determined by abnormal behavior and/or a positive drug/alcohol screening test regardless of when or where the prohibited substance entered the person's system. Possessing or consuming alcoholic beverages illegal or unauthorized drugs or controlled substances while on BEAN's premises (includes offices parking lots all work locations desks lockers living areas restrooms break rooms and any motor vehicle vessel or aircraft engaged in business in behalf of the Company) is strictly prohibited as well.

Additionally all applicants employees and contractors will be required as a condition of employment to submit to requested drug and/or alcohol testing from time to time. Such testing will be performed in accordance with this policy and with the requirements of Federal Law.

Any employee who reports to work under the influence of alcoholic beverages or having used illegal or unauthorized drugs will be subject to removal from company premises and to disciplinary action up to and including discharge. Additionally the presence of illegal drugs controlled substances or alcohol in the employee's system may result in the denial of Worker's Compensation or unemployment compensation benefits.

Additionally when Weathersby filled out his employment application and before he submitted his drug screening he signed a typed statement which provided as follows:

"I am aware that BEAN and its subsidiary companies do pre-employment drug screening and that in order to become employed and remain employed my pre-employment drug screen must be negative. I am not an illegal drug user and at this time I can pass a drug screen. I understand that if I am put to work prior to receipt of a test result indicting [sic] the presence of illegal [Pg 3] drugs in my body I will be immediately discharged for deliberately falsifying employment information. The above action will be based on the statement signed by me certifying to my drug free condition.

I also understand that a discharge from employment for filing a fraudulent employment application will jeopardize my right to receive unemployment insurance benefits which are based on my previous employment."

In accordance with its substance abuse policy Bean required Weathersby to submit to a drug screen as part of a pre-employment physical. On October 3 1994 Weathersby submitted himself for the required pre-employment drug screen. On October 5 1994 Bean put Weathersby to work prior to receiving the test results. Weathersby worked for Bean from October 5 1994 through October 10 1994. Bean terminated Weathersby on October 10 1994 in light of his positive test for cocaine.

The Division of Employment Security awarded Weathersby unemployment compensation benefits finding that Bean failed to submit a copy of the drug screening test results and that Weathersby denied drug usage. Bean appealed and among other items entered a copy of the drug screen test results into evidence. An administrative law Court affirmed the decision of the Division of Employment Security. Again Bean appealed. The board of review affirmed the finding of the administrative law Court. Bean then perfected an appeal to the district court. After finding that the decision of the board of review was based upon evidence sufficient to support its finding the district court affirmed the board of review.

ANALYSIS

Bean contends on appeal that the trial court erred when it held that Weathersby's drug use occurred prior to his employment and therefore was not job related. It argues that it immediately put Weathersby to work on his signed [Pg 4] attestation in his employment application that he was free of drugs and would pass the drug test.

For a claimant to be disqualified from benefits because of "misconduct connected with his employment" under R.S. 23:1601(2) the misconduct must have resulted from willful or wanton disregard of the employer's interest from a deliberate violation of the employer's rules or from a direct disregard of standards of behavior which the employer has the right to expect from his employees. Eugene v. Adm'r Div. of Emp. SEC. 525 So. 2d 1185 (La.App. 5 Cir. 1988). The employer bears the burden of proving that the discharge resulted from disqualifying conduct. This issue is primarily factual and is left to the determination of the referee and the board of review. La.R.S. 23:1634. There must be legal and competent evidence to support the factual findings on which the administrative decision turns. Banks v. Administrator of Dept. of Employment 393 So. 2d 696 (La.1981). In administrative hearings however the usual rules of evidence do not apply and hearsay is generally admissible. La.R.S. 23:1631; Gardere v. Brown 170 So. 2d 758 (La.App. 1 Cir.1964). Nevertheless the jurisprudence recognizes that hearsay evidence is not competent to overcome an employee's direct contradictory testimony. Credit v. Whitfield 488 So. 2d 1064 (La.App. 2 Cir.1986) and cases cited therein. As exemplified in Thigpen v. Administrator Office of Employment Security 488 So. 2d 1213 (La.App. 4 Cir.1986) the admission of hearsay as competent evidence in cases where the fact is contradicted would deprive the claimant of a fair opportunity to rebut or cross-examine the offending documents.

Under the provisions of La.R.S. 23:1634(B) our judicial review must be confined to questions of law. In the absence of fraud the findings of fact of the Board of Review are conclusive if supported by sufficient evidence. Washington v. [Pg 5] Whitfield 521 So. 2d 542 (La.App. 4 Cir.1988). Our review does not entail the weighing of evidence drawing of inferences re-evaluation of evidence or substituting the views of this court for those of the Board of Review as to the correctness of facts. Id.

From the outset we note the correctness of the prior administrative and appellate determination that Weathersby's drug use/exposure to illegal drugs occurred prior to his employment with Bean. Notwithstanding that fact we find that the administrative bodies and the district court failed to consider the rest of the facts applicable herein which provide the employment flavor needed to assess the merits of Weathersby's claim.

We find that two significant facts emerge in this case: (1) Bean considered the need for a drug free work setting so important that it promulgated special drug rules applicable to job applicants and its employees; and (2) because of the significance that Bean placed on the need to be drug free Bean's employment of Weathersby was made subject to a resolutory condition namely a negative drug test.

Against this backdrop we find several facts that are dispositive of the question presented. First Weathersby stated that he could pass a drug screen when he sought employment with Bean. Second the record further establishes that Weathersby understood that he would be discharged from Bean's employ if the drug test result indicated the presence of illegal drugs in his body and that his entitlement to unemployment compensation would be jeopardized.

When we couple the positive drug test with the written assertions that Weathersby made in his employment application we find that Weathersby made false assertions to Bean that contravened the drug policy it established and constituted [Pg 6] misconduct connected with his employment. We recall that in the written statement Weathersby signed as part of his employment application he stated:

I understand that if I am put to work prior to receipt of a test result indicting [sic] the presence of illegal drugs in my body I will be immediately discharged for deliberately falsifying employment information. The above action will be based on the statement signed by me certifying to my drug free condition.

(Emphasis added).

Accordingly we find that the trial court and the administrative tribunals erred as a matter of law in finding that Weathersby was not guilty of misconduct connected with his employment. Therefore we reverse the decisions of the trial court and the administrative tribunals and find that Weathersby is not entitled to unemployment compensation benefits.

For the foregoing reasons the judgment of the trial court and the rulings of the Office of Employment Security are reversed and set aside. Costs of this appeal are assessed to the defendants.

REVERSED AND RENDERED.

THIBODEAUX J. DISSENTS AND ASSIGNS REASONS.

COOKS J. DISSENTS AND ASSIGNS REASONS.

Dissenting: The Hon. Justice Cooks; Thibodeaux

The majority correctly recites this court's authority to review administrative decisions is limited to questions of law in the absence of fraud. Mindful of the bar preventing them from reviewing factual findings of administrative tribunals the majority acknowledges as they must the "correctness of the prior administrative and appellate determination that Weathersby's drug use/exposure to illegal drugs occurred prior to his employment with Bean." Strangely however the majority's reversal of the decisions of the Division of Employment Security the Board of Review and the district court affirming the Board's determination hinges on a "purely factual" finding that Weathersby made a "false assertion constituting disqualifying misconduct, when he stated to Bean he could pass a drug screen."

The falsity of Weathersby's assertion is not a question of law. It rests on whether he reasonably believed he could pass a drug screen. The fact that Weathersby failed the pre-employment drug screen does not end the inquiry. Bean did [Pg 2] not even raise this factual issue below. Moreover Bean's only assignment of error before this court raises a single legal question: "Whether Louisiana's unemployment security law which disqualifies employees discharged for failing drug tests also disqualifies applicants who fail pre-employment drug screens which are administered with the consent of the applicant in accordance with company policy and mandated by federal law." This is and remains the only reviewable issue before this court. The record does not contain any evidence of fraud which might vest this court with additional authority to examine the record for factual errors.

The real question of law in this case is whether violating an employer's pre- employment rule constitutes misconduct. We have not directly addressed this issue. However in Marine Drilling Co. v. Whitfield 535 So. 2d 1253 (La.App. 3 Cir. 1988) we said "misconduct such as to disqualify an employee from receiving unemployment compensation must be employment related." See also Morris v. Gerace 353 So. 2d 986 (La.1977). The trial court and administrative tribunals found Weathersby's drug use occurred prior to his employment and his alleged "misconduct" was not job related. Bean invites this court to assign legal error to three determinations below. Although Bean points out that La.R.S. 23:1601 (10) provides illegal drug use by "current employees" may serve as disqualifying misconduct it admits "there are no court decisions that address the issue of whether applicants can be similarly disqualified when they test positive for illegal drugs." Bean argues "there is no legitimate legally defensible distinction to be made between employees and applicants when both have tested positive for illegal drugs." This argument is flawed.

We are not at liberty to redraft La.R.S. 23:1601 (2) (a) or (10) simply because it urks us that an applicant who may have used drugs is entitled to unemployment benefits. We cannot substitute our judgment or make policy choices for [Pg 3] the legislature. An employer contending that a claimant is disqualified from receiving unemployment benefits has the burden of proving willful misconduct by a preponderance of the evidence. Operators Inc. v. Comeaux 579 So. 2d 1228 (La.App. 3 Cir. 1991). It is well-settled jurisprudence that "misconduct" must be construed so as to favor awarding benefits rather than disqualifying a claimant because of the humane purpose of the Unemployment Compensation Act. Charbonnet v. Gerace 457 So. 2d 676 (La.1984); Operators Inc. 579 So. 2d 1228; Taco Bell Corp. v. Perkins 95-225 (La. App. 5 Cir. 9/26/95) 662 So. 2d 34. La.R.S. 23: 1601 (2) (a) defines misconduct as "mismanagement of a position of employment by action or inaction ... dishonesty wrongdoing violation of a law or violation of a policy or rule adopted to insure orderly work or the safety of others." An applicant who is not yet employed cannot mismanage an unfilled position. The definition assigned this term by the legislature is not ambiguous nor susceptible of different meaning.

Bean however seeks to edit this definition by insisting that we include applicants within its ambit and find any violation of its pre-employment drug rules constitutes disqualifying misconduct. The majority's effort to come to Bean's rescue is not legally floatable for the reasons already mentioned; and further the applicable statute does not reach the conduct Bean complains constituted misconduct. Moreover a violation of an employer's rule does not per se constitute misconduct sufficient to disqualify a claimant from receiving unemployment benefits. The Supreme Court has consistently declared misconduct means "an act of willful or wanton disregard of the employer's interest or a deliberate violation of the employer's rules." Morris v. Gerace 353 So. 2d 986 (La.1977); Horns v. Brown 243 La. 936 148 So. 2d 607 (La. 1963).

The issue is not whether Bean had reasonable grounds to discharge Weathersby; but whether those grounds constituted misconduct in connection with [Pg 4] Weathersby's employment such that he can be denied unemployment benefits. The answer is an obvious no! An employer may discharge an at-will employee who does not pass a pre-employment drug test; but the employer's right to do so does not change the unemployment compensation laws of this State the authority of the legislature to define employment "misconduct or the administrative tribunal's authority to make binding factual determinations. The policy which the majority recites and concludes Weathersby violated allows Bean to discharge him, a right it possessed even if no reason at all existed. This policy, however, cannot be cut and pasted" into La.R.S. 23:1601 et. seq.

For these reasons and more I respectfully dissent.

THIBODEAUX J. dissenting.

To be ineligible for unemployment benefits the employee's alleged misconduct must have been employment-related or a violation of his employer's promulgated rule with respect to drug usage. Marine Drilling Company v. Whitfield 535 So. 2d 253 (La.App. 3 Cir. 1988). Louisiana Revised Statute 23:1601(10)(a) provides that "misconduct" includes on or off the job drug use of a non-prescribed controlled substance. It is the employer's burden to prove such usage by a preponderance of the evidence.

Clearly the evidence does not show that Weathersby's drug use was employment-connected. However it was arguably a violation of the company's policy which prohibited "all employees and contractors from reporting to work [Pg 2] having used illegal or unauthorized drugs . . . regardless of when or where the prohibited substance entered the person's system." Bean's policy also applied to applicants. However notwithstanding this policy there is no proof which indicated that Weathersby reported to work having used unauthorized drugs. The test was administered on October 3rd. Bean began working on October 5th. While there was presumably the presence of drugs in his system on October 3rd there is nothing to indicate the presence of drugs when he reported to work on October 5th or through October 10th the date he was fired. Therefore there is no violation of company policy.

Weathersby did sign a statement saying that "at this time I can pass a drug screen . . . . I understand that . . . I will be immediately discharged for deliberately falsifying employment information." Again there is no proof that he was deliberately falsifying employment information. He may have been under the sincere belief that he could have passed it at the time he signed this statement.

Furthermore the majority recognizes that our appellate review in such situations is confined to such questions of law. The majority then goes on to find "significant facts" "which are determinative of this case." It then finds that the trial court and the administrative tribunals erred "as a matter of law in finding that Weathersby was not guilty of misconduct connected with his employment." It seems to me that Court has placed itself in the position of reviewing and making factual determinations contrary to La.R.S. 23:1634(B). It is appropriate to conclude as a matter of law that the law and Bean's drug policy applied to applicants as well as employees. Even if we find this as a matter of law for the reasons stated above Bean would not be entitled to relief.

For the foregoing reasons I respectfully dissent.