P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)



Hearing No. 01600159RC

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 makes the following:


The employee worked for about 14 months as a forklift operator for the employer, a plastics manufacturer. The employee's last day of work was November 20, 2000 (week 48), when he was discharged.

The issue to be decided is whether the employee's discharge was for misconduct connected with his employment.

The employer discharged the employee for appearing at work under the influence of alcohol.

The employer issued a memo dated August 12, 2000, that states that the employer suspected the employee had been drinking before or during his shift. Because the employer was uncertain the employee had been drinking it let him work, but told him about the employer's employee assistance program.

The employer's policy does not indicate what will happen to a worker with alcohol in his system. It states that the employer is a drug free workplace and "expressly prohibits the use, possession, sale, or transfer of drugs or alcohol while the employee is working or while the employee is on the employer's premises or operating the employer's vehicle, machinery, or equipment." There is a catch all that states that some rule violations may be considered serious enough to warrant immediate suspension or termination.

The employee information sheet indicates that disciplinary action will result from the use or possession of illegal weapons, drugs or alcoholic beverages.

On November 20, 2000, the employee went to talk to the Human Resources Director about his remaining vacation time. The Director smelled alcohol on the employee's breath. She determined that he was under the influence of alcohol. She asked one of the employer's engineers, who did not drink, to verify the employee's condition. The employer then gave the employee a test that indicated that he had significant amounts of alcohol in his system. After the test, the employer discussed the matter with the employee and the employee admitted that he had been drinking, but much earlier, and did not believe he was intoxicated. The employer discharged the employee. The employee's job involved driving a forklift. The employer believed the employee could not safely operate a lift truck in his condition.

The employee was aware he could be discharged if he tested positive for alcohol. The employee further believed his job was in jeopardy and that the employer was watching everything he did.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term `misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed `misconduct' with in the meaning of the statute."

In this case, the employee reported to work under the influence of alcohol, despite the fact that his job involved driving a forklift. He was aware that such conduct could result in his discharge, and this had been mentioned on an earlier occasion. The commission concludes that the employee's actions demonstrated such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

The commission therefore finds that in week 48 of 2000, the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in weeks 49 through 53 of 2000 and 1 through 6 of 2001, amounting to a total of $3,179.00 for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employee is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.


The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 48 of 2000 and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $3,179.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed July 6, 2001
luisis . urr : 145 : 1  MC 653.1

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ did not find either party particularly credible or incredible. His decision indicates that he did not believe the employer's rule is specific enough with regard to addressing the consequences of being under the influence at work. However, the employee specifically testified that he was aware he could be discharged for appearing at work under the influence.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.

cc: Liquid Container L.P.

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uploaded 2001/07/09