Question: Plaintiff/truck driver was fired after he tested positive for use of marijuana on the job. Under applicable federal interstate trucking regulations, the driver had the right to a second test at the employer's expense within seventy-two hours of the positive result. The employer failed to advise the employee of this right. However, the employee paid for his own test, which came up negative. The employer then refused to consider the results of that second test and let the discharge stand.
When the plaintiff applies for unemployment compensation, if the referee considers only the employer's evidence of a positive drug test, should the plaintiff be found guilty of willful misconduct and denied benefits? Should the referee allow the plaintiff/ employee to submit evidence of his personally purchased drug test? How much weight should the referee give this test? See Southwood Door Company v. Burton [847 SO.2d 833 (Miss. Supreme 2003)].