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EMPLOYMENT affirming an award of state unemployment benefits for an employee who was fired after testing positive for marijuana, the Mississippi Supreme Court said on June 3 that there must be clear and convincing evidence that the testing was done according to federal guidelines. Southwood Door Co. v. Burton, No. 2002-CC-00893-SCT. Because it employed over-the-road truckers, a door manufacturer and distributor was subject to federal Department of Transportation regulations regarding drug and alcohol testing. It fired driver Raymond Burton after he tested positive for marijuana in which only half of a urine sample he submitted had been used. Burton underwent another urine test and a hair follicle test, both of which came back negative. After being denied his request to be reinstated, he applied for unemployment benefits. The claims examiner determined that he was not terminated for misconduct and found him eligible for benefits. An appeals referee reversed. A review board dismissed Burton’s appeal as untimely, but the trial court remanded, and the board affirmed the referee’s decision. Addressing the case again on appeal, the trial court reversed the board’s decision and held that the employer failed to prove misconduct by clear and convincing evidence. Miss. Code Ann. § 71-5-513A(1)(b) disqualifies an employee from receiving unemployment benefits for “misconduct connected with his work.” Affirming the trial court’s findings, the high court said that misconduct was not established because Burton had not been given a chance, as federal law mandates, to ask for a test of the remaining sample within 72 hours of the positive test result.

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