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

MICHAEL L GIRARD, Employee

RITE HITE MANUFACTURING CORPORATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01605663MW


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked as an assembler for the employer, a manufacturer of lift assemblies, for two and one-half years. His last day of work was May 11, 2001 (week 19).

On May 10, 2001 (week 19), the employee was followed when leaving the premises on a break. A private investigator observed the employee smoke a leafy substance from a metallic pipe while seated in his personal automobile off company premises. The employee then returned to the employer's place of business and completed his shift.

The employer called the employee into a meeting on May 11, 2001, at the end of the workday and demanded that he submit to a drug screen or be discharged. The employee stated that any drug screen he submitted to at that time would be positive for marijuana due to recent off-duty use. When the employer continued to insist that he submit to a drug screen anyway, he left the meeting, cleaned out his locker and was not heard from again. The employer's rule prohibits working under the influence of illegal substances.

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

The employee contended that he had been discharged during the meeting on May 11, 2001 (week 19). However, prior to his leaving the meeting, he was advised only that he would be discharged if he refused to submit to the drug screen. He left the meeting and the premises before the employer acknowledged any final refusal on his part and discharged him. His actions in leaving the meeting without submitting to the required drug screen were inconsistent with a continuation of the employment relationship and constituted a quitting of his employment.

The employee did ingest a controlled substance on May 10, 2001 (week 19). The videotape and testimony of the private investigator, together with the employee's incredible explanation of his activities, supports such a finding. The employer asked the employee to submit to a drug test to give the employee a chance to exonerate himself. The employee chose to quit rather than submit to a drug test. The employer was not acting unreasonably given the employee's conduct the prior day in ingesting an illegal substance just prior to returning to work. The employer had a legitimate business interest in insuring the employee did not appear for work impaired particularly since his job duties included driving a forklift and operating an overhead crane. The employee's representation that the test would be positive based on his off-duty use of illegal substances did not make the employer's conduct unreasonable and did not justify the employee's quitting.

The commission therefore finds that in week 19 of 2001, the employee voluntarily terminated his work with the employer but not with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

The commission further finds that the employee was paid benefits in the amount of $5,634.00 for weeks 20 through 37 of 2001, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

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.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 19 of 2001, and until four weeks elapse since the end of the week of quitting and the employee has earned wages in covered employment equaling at least seven times the weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $5,634.00 to the Unemployment Reserve Fund.

Dated and mailed March 12, 2002
girarmi . urr : 132 : 8 : VL 1007.15

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ regarding witness credibility. The commission agrees with the ALJ's credibility assessments as reflected in the appeal tribunal decision. The commission disagrees with the ALJ's conclusion that the employee's quitting was with good cause attributable to the employer.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another 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 overpayment.

 


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