KEITH W MCGARY, Employee

AMEREQUIP CORP, Employer

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 two years for the employer. His last day of work was September 11, 2001 (week 37), when he was discharged.

During his employment, the employee accumulated a significant number of attendance violations under the employer's no fault attendance guidelines. He was subjected to progressive discipline under the employer's attendance policy. On August, 2001, he was placed on a 60 day probation for attendance which stated that another instance of attendance violation or other rule violation was grounds for discharge. Thereafter, the employee received a work injury requiring off-site medical attention. He was sent for a drug test, as called for in the employer's drug and alcohol policy. He was discharged for the combined work rule violations of poor attendance and a positive drug test.

The employer's drug policy prohibited several different types of on-duty or on-premises conduct involving drugs and alcohol. It also provided, "[i]t is prohibited for any employee to be on work premises or perform work with drugs or alcohol present in their system as confirmed through a positive drug test." Since the employer's policy also expressly prohibits intoxication at work, this provision is reasonably read to cover other conduct, including off-duty conduct, since the mere presence of metabolites does not establish impairment. The policy also provides that "[a]n employee testing positive may be disciplined up to and including discharge. An employee who violates this policy the first ( 1st ) time shall be given an opportunity to participate in an evaluation program under the Company sponsored Employee Assistance Program (EAP) and thereafter must follow and complete any treatment program recommended by the evaluator in lieu of discharge."

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constituted misconduct connected with the employment.

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."

The employer's policy does not call for discharge solely on the basis of a single drug offense. However, the employer discharged the employee in this case because he was already on probation for his attendance violations. That probation stated that a future attendance or other rule violation within 60 days would result in discharge. While many of the employee's absences were for illness or injury, a number of other attendance violations and tardies were for invalid reasons. After he was placed on probation, with notice that his job was in jeopardy from his attendance, the employee committed another rule violation by testing positive for drugs. The commission therefore concludes that his discharge was for misconduct connected with his employment..

The commission therefore finds that in week 37 of 2001, the employee was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $6,830 for weeks 43 of 2001 through week 19 of 2002, 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 benefit checks for weeks 37 though 42 of 2001 and $117 of the benefit check for week 43 of 2001 were forfeited. Since benefits are now denied for such weeks, they cannot be applied to the forfeiture. The amount restored to the forfeiture balance is $1,398.

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.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 37 of 2001, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $6,830 to the Unemployment Reserve Fund. The initial Benefit Computation (form UCB-700), issued on September 11, 2001 is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

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 May 24, 2002
mcgarke . urr : 178 : 1  MC 688.1

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The employee did not consult with the ALJ prior to reversing. The commission does not base its decision on any differing assessment of witness credibility but reverses as a matter of law. The employee was discharged after he was placed on notice that his job was in jeopardy from prior rule violations.

cc: Amerequip Corporation (Kiel, Wisconsin)

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uploaded 2002/06/05