KEITH A WILTZ, Employee

TRANSIT EXPRESS INC, Employer

On February 2, 2001, the Department of Workforce Development issued an initial determination which held that the employee's discharge was not for misconduct connected with his employment. The employer timely requested a hearing on the adverse determination, and hearing was held on April 3, 2001 in Milwaukee, Wisconsin before a department administrative law judge. On April 9, 2001, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employer filed a timely petition for commission review of the adverse appeal tribunal decision and, by June 4, 2001 order, the commission remanded the matter to the department for additional hearing. That hearing was scheduled for August 30, 2001, but neither party appeared. For this reason the commission, by September 27, 2001 order, remanded the matter to the department a second time for additional hearing, which occurred on November 5, 2001. The matter is again before the commission, and now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

The employee worked approximately three months as a driver for the employer, a transportation company. His last day of work was November 8, 2000, and the employer discharged him on November 9, 2000 (week 47), for having failed a drug test. The issue is whether the employer's discharge of the employee was for misconduct for unemployment insurance purposes; the commission concludes that it was, and so reverses the appeal tribunal decision.

The employee became subject to a drug test, pursuant to the employer's random drug testing policy. The test was administered to the employee on October 31, and was positive for cocaine and opiates. When the employer learned of the results of the test, it discharged the employee pursuant to its rule prohibiting employees' unauthorized use of controlled substances.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. The employee's failure of the drug test in this case meets this standard. The employee worked as a driver for a transportation concern and, as such, drove a vehicle for the employer in public. The law allows for heightened oversight of employees in such employment, so the employer's rule prohibiting any unauthorized use by employees of controlled substances, cannot be deemed unreasonable. There is no indication, finally, that the results of the test were inaccurate or invalid for any other reason.

The commission therefore finds that, in week 47 of 2000, the employee was discharged for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5). The commission also finds that the employee received unemployment insurance for each of weeks 3 through 6 and 17 through 32 of 2001, totaling $2,077.00, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employee fault as provided in Wis. Stat. § 108.04(13)(f), yet the overpayment also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 47 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. The employee must repay $2,077.00 to the Unemployment Reserve Fund. The monetary computation (form UCB-700), issued on January 18, 2001, is set aside.

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 other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed December 18, 2001
wiltzke . urr : 105 : 1  MC 651.1

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission's reversal is based upon evidence not before the administrative law judge when he issued his April 9, 2001 decision.

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