This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-96-1740

Troy S. Kusilek,

Respondent,

vs.

Yellow Freight System, Inc.,

Relator,

vs.

Commissioner of Economic Security,

Respondent.

Filed February 18, 1997

Reversed

Short, Judge

Department of Economic Security

File No. 2150UC96

Daniel P. Murray, Hammarback Law Offices, S.C., 714 North Main Street, P.O. Box 467, River Falls, WI 54022 (for respondent Kusilek)

Andrew R. Clark, Kalina, Wills, Woods, Gisvold & Clark, P.L.L.P., 941 Hillwind Road Northeast, Suite 200, Minneapolis, MN 55432 (for relator)

Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)

Considered and decided by Short, Presiding Judge, Amundson, Judge, and Harten, Judge.

U N P U B L I S H E D O P I N I O N

SHORT, Judge

Troy Kusilek filed for reemployment insurance benefits after his employer, Yellow Freight Systems, Inc., discharged him for testing positive for marijuana in a random follow-up drug urine test. The Commissioner's representative affirmed the reemployment insurance judge's conclusion that Kusilek was discharged for reasons other than misconduct. By writ of certiorari, the employer argues the decision is without factual support. We reverse.

D E C I S I O N

The reemployment insurance fund is available to persons "unemployed through no fault of their own." Minn. Stat. § 268.03 (1996); White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). An employee discharged for misconduct is, therefore, disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(b) (1996). The employer bears the burden of proving the employee's misconduct. Ress v. Abbott Northwestern Hosp., 448 N.W.2d 519, 523 (Minn. 1989). Our review of the Commissioner's factual findings is limited to whether the evidence supports the findings, but we review de novo whether the facts, as found by the Commissioner, constitute misconduct. Id.

Minn. Stat. § 181.953, subd. 10 (1996), forbids employers from discharging an employee "on the basis of a positive test result from an initial screening test that has not been verified by a confirmatory test." The Commissioner's representative found that Kusilek's initial test was not verified by a confirmatory test. However, the record demonstrates: (1) the medical review officer's report states that Kusilek's test was analyzed in accordance with Health and Human Services screening and confirmation cutoff levels; (2) the distribution center manager testified the employer followed National Master Freight Agreement procedures, including article 35, which requires all specimens identified as "positive" to be confirmed; and (3) on appeal, the Commissioner now concedes a confirmatory drug test was performed. Given these circumstances, the Commissioner's decision is without factual basis.

Kusilek committed misconduct when he violated the agreement that made his continued employment conditional on remaining drug-free. See Hein v. Gresen Div., 552 N.W.2d 41, 44 (Minn. App. 1996) (holding employee's violation of agreement with employer, that he remain drug free, constituted misconduct connected with employment). In addition, his drug use itself constituted misconduct. Id. (finding misconduct where employee consumed illegal drugs while off-duty). The Commissioner's representative erroneously concluded Kusilek's involuntary separation from employment was for reasons other than misconduct. Kusilek, therefore, is disqualified from receiving reemployment insurance benefits.

Reversed.