STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


SHIRLEY A TWINING, Employee

PLEXUS CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00402697AP


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 30 of 2000, if otherwise qualified.

Dated and mailed January 17, 2001
twinish.usd : 132 : 1  MC 651.1 MC 652.5  MC 653.1

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision which found that the employee was discharged from her employment and not for misconduct connected with her work. The commission has reviewed the record in this matter and agrees with the administrative law judge's Finding of Fact and Conclusions of Law. The employer states it is surprised the administrative law judge would question the employer's zero tolerance standard. However, it is because the employer had such a standard without establishing a reason for that standard that the commission affirms the administrative law judge's decision. While the employer does have a right to regulate off-duty conduct, in order for the violation of a work rule relating to off-duty conduct to constitute misconduct, the rule must bear a reasonable relationship to the employer's interest. The employer has not established a reasonable relationship between the employee's off-duty consumption of a legal substance and her employment. The fact that the employee tests positive, that is has a detectable amount of alcohol in her system, does not show impairment at work or that the employee is "under the influence." The employer did not establish that a reading of .008 or .011 in any way shows impairment or that the employee's performance was adversely affected by the presence of a detectable amount of alcohol. Finally, the employer has not shown that it was prejudiced because the employee was unable to review the exhibit.

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The employer policy says "Employees are expected to report for work and remain at work in a condition which enables them to perform their duties free from the effects of alcohol and drugs. The possession, use, sale, purchase, dispensing, distribution or manufacture of any illegal drug(s), controlled substance(s), or alcohol, or being under the influence of the same, by any employee while in the workplace, on Company premises or in the conduct of Company-related work off- site is prohibited as set forth more specifically below." The employee testified "I knew the policy prohibited being under the influence of drugs or alcohol at work. I understood the employer's policy to mean that I should not have any alcohol in my body." Thus the employee understood that the employer had a zero tolerance policy at work.

Exhibit 5 shows that the employee had a .083 alcohol reading on January 24, 2000 based on reasonable suspicion testing. She was tested again as a follow up and tested .011 on July 20, 2000 and was fired. She was tested at 5:00 PM and her shift started at 2:30 PM.

The majority finds that because alcohol is a lawful substance that the employer can not regulate off duty conduct. The employer is not trying to regulate off duty conduct. The employer is only prohibiting the employee from reporting to work with any measurable residue of alcohol in her system. The employee is free to consume alcoholic beverages during her off duty hours so long as it can not be measured once she comes to work.

The administrative law judge required the employer witnesses to be scientific experts on the use of the breathalyzer. The employer witnesses were able to testify that the breathalyzer was calibrated weekly. There is no evidence in the record to reflect that there was anything wrong with the machine or that it was not properly maintained. The employee did not challenge the readings.

The administrative law judge found that the employer's policy did not prohibit reporting to work with measurable alcohol but that it only prevented the employee from being under the influence of alcohol. The employer argued and the employee agreed that the employer policy was interpreted to mean zero tolerance for alcohol. The case would have been easier if the employer policy actually stated what both parties believed the policy to be. If the employee in this case had argued that she was not under the influence of alcohol and that was what the rule prohibited, I would have allowed benefits. That was not the case here. The employer policy in this case is not regulating off duty conduct and so is not in violation of the lawful substances act. The employer policy allows the employee to use alcohol so long as she does not report to work with a measurable amount. The employer could just as well have a policy which prohibits an odor of alcohol on the employee's breathe.

The majority finds that to be under the influence of alcohol that a person must have a test of .10 like that required for driving. The problem with that is that is that truck drivers are consider under the influence at .04 and other states have levels of .08. The federal government has wanted states to adopt the .08 level.

While I believe that the employee believed that she had not used alcohol except for the fruitcake, I find it incredible that there would be any alcohol left in it when she toasted it. The alcohol would have evaporated. The employee said it did not taste of alcohol. The employer witness who was an occupational health nurse did not believe that the fruitcake would cause a positive test.

In this case, the employee violated the known employer policy for a second time and the employer fired her. I believe that is misconduct under the Boynton Cab Co. v. Neubeck & Ind. Comm. case. For these reasons, I would reverse and deny benefits.


____________________________________
Pamela I. Anderson, Commissioner


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