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

JOE ANN BARNES, Employee 

AMERICAN BUILDING MAINTENANCE CO OF ILLINOIS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00608090MW


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, except that it makes the following modifications:

Under Findings of Fact and Conclusions of Law, replace paragraphs five and six with the following:

"Although the employer had a drug-free work-place policy in effect during the period of the employee's employment, it failed to produce a copy of its drug-free work-place rules at the hearing. In its place, the employer produced a copy of a drug-free work-place policy agreement which the employee signed. This agreement indicates that the employee received and read a summary of the drug-free work-place policy and that she understood she may be required to submit to an alcohol and or drug test and that a failure to comply with the policy would result in discipline up to and including termination.

The employee was discharged for testing positive for marijuana. Although the employee's discharge was based upon a violation of the employer's drug-free work-place policy and rules, the employer failed to produce a copy of the work-place rules.

It is generally held that an employer's work rule may prohibit on duty and off duty illegal drug use and still be reasonable provided the prohibition is in writing and spells out the consequences of a positive test result and that this is known to the employee. Here, the employer failed to establish the contents of its rule and therefore it cannot be held that the rule reasonably prohibited either on duty or off duty illegal drug use.

Under the circumstances, the employer failed to establish that its discharge of the employee was for misconduct. Absent a copy of its rule, it cannot be held that the rule was reasonable and that the employee violated it."


DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, benefits are allowed, if the employee is otherwise qualified.

Dated and mailed June 29, 2001
barnejo . umd : 135 : 8  MC 651.7

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The petition for commission review in this matter does not specifically challenge any of the procedural and evidentiary rulings made by the ALJ, nor does it challenge any specific findings of fact as being unsupported by the record, nor does it specifically assert whether and why any conclusions of law are claimed to be in error. Thus, the commission has no specific indication of why the employer believes it should prevail on this record or what it claims was erroneously decided by the ALJ. Notwithstanding this, the record in this matter has been reviewed for the purpose of determining whether the findings of fact and conclusions of law made by the ALJ are supported. Concluding that they are, the commission has adopted them as its own.

The commission modifies the appeal tribunal decision because it is satisfied that the employer failed to meet its burden of proof when it failed to produce a copy of its drug-free work-place written rules prohibiting illegal drug use. Absent the rule, the commission cannot conclude that it was reasonable and that the employee's violation of it amounted to misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

cc: 
Irina Feldman
Wray Vassar


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uploaded 2001/07/02