LAWSON CARTER JR, Employee

EMMPAK FOODS INC, Employer

On August 18, 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 filed a timely request for hearing on the adverse determination, and hearing was held on October 9, 2001 in Milwaukee, Wisconsin before a department administrative law judge. On October 11, 2001, the administrative law judge issued an appeal tribunal decision affirming the initial determination of no misconduct. The employer filed a timely petition for commission review of the adverse decision, and the matter 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 12 weeks as a machine operator for the employer, a meat processor. The employer discharged him on July 27, 2001 (week 30), for allegedly tampering with a urine sample he had just provided to the employer's human resources nurse. The commission believes the evidence is sufficient to establish that the employee did tamper with the sample, and that such tampering was misconduct for unemployment insurance purposes. The commission therefore reverses the appeal tribunal decision.

The employer requires workers to submit to drug and alcohol screens in certain circumstances, including when involved in an accident causing $500.00 or more damage and also whenever the worker receives a three-day suspension. On July 27, 2001, the employer placed the employee on a three-day suspension for a work rule violation. Pursuant to the employer's policy, the employee thus was required to submit to a drug and alcohol screen. The employee reported to the nurse in the employer's Human Resources Medical Department for the screen. Samples are collected into a specimen bottle which has a temperature strip on the bottom of the bottle. The lowest temperature reading on the strip is 90 degrees, pursuant to federal Department of Transportation rules and regulations. A sample temperature lower than 90 degrees means that the sample was tampered with, specifically that it was diluted with a colder substance. Because the temperature strip for the sample had no reading, the nurse manually took the temperature of the sample with a calibrated thermometer; the temperature of the sample was 82 degrees. The nurse took the employee's temperature, which was 97.4 degrees. The nurse notified the employee's supervisor of these circumstances, and the employer then discharged the employee for tampering with the urine sample. The employer's work rules state that if a sample is found to be invalid or unreliable due to circumstances related to the conduct of the employee, the employee will be presumed to have been incapable of passing the screen and subject to appropriate disciplinary action, up to and including discharge.

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 commission believes the employee's conduct meets this standard. The employer reasonably could expect that employees not tamper with urine samples provided pursuant to the employer's work rules. The work rules also specifically state the consequences of such tampering.

The commission therefore finds that, in week 30 of 2001, 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 was paid benefits in the amount of $150.00 per week for each of weeks 31 through 44 of 2001, and $19.00 for week 45 of 2001, totaling $2,119.00, for which he was not eligible 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 allowed 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 30 of 2001, 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 $2,119.00 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 other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed January 4, 2002
cartela . urr : 105 : 1  MC 652.3  PC 714.06 

/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 case. The basis for the administrative law judge's decision was that the evidence did not conclusively establish tampering of the sample by the employee. Conclusive establishment is not necessary, however. The tampering need be established only by a preponderance of the evidence. Nor were chain of custody documentation forms necessary in this case. Chain of custody issues are satisfied when all of the individuals involved are present at the hearing and testify regarding their involvement. Nor is laboratory examination required in a case like this, when the same bottle itself and the nurse's immediate temperature analysis are what is relevant (as opposed to a quantitative chemical analysis performed by a laboratory).

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uploaded 2002/01/07