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

JANETTE E HEIN, Employee

CAMEO CARE CENTER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02603347MW


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 a registered nurse supervisor from August of 2001 for the employer, a skilled care facility. Her last day of work was February 11, 2002.

During the employee's employment, the employer had in effect a substance abuse policy. The policy was instituted to address concerns over the adverse effect drug use has on productivity, attendance, health insurance costs, and workplace safety. The policy provided for testing if there was reasonable cause to believe that an employee was using a prohibited drug in violation of the policy. That policy prohibited the use, sale, possession or distribution of controlled substances while at work. The policy further prohibited being under the influence of a controlled substance while at work. The policy provided that an employee who tested positive in any drug test required under the policy would be considered in violation of that policy. The employee was aware of that policy.

The employer received a complaint from a resident that the employee was observed smoking marijuana on the premises. Based on that complaint, the employer asked her to submit to a drug test. She agreed and submitted to a test on February 12, 2002. On February 15, 2002, the employer received the test results which showed the presence of cannabinoids. The employer then contacted the employee to arrange to meet with her regarding the test results. When first contacted the employee indicated she could not meet with the employer due to a sick child. The employee met with the employer on February 20, 2002, and was questioned about the test results. The employee denied that the test could be positive. The employee attributed the positive test to her presence at a concert at which others were smoking marijuana. The employee demanded a retest. The employer offered to have another test conducted on the same sample. The employee insisted on providing a new sample. The employer did not agree to the employee's condition for taking a retest. The employer discharged the employee by letter dated February 20, 2002 (week 8), because of her positive drug test for cannabinoids.

The issue to be resolved is whether the employee was discharged for misconduct connected with her 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 commission does not credit the employee's claim that she did not smoke marijuana. There is no credible evidence in the record that a positive test could result from the employee's mere presence at a concert where marijuana was being smoked. Further, the employer was willing to have the employee's sample tested again. The employer was not obligated to allow the employee to provide a new sample 8 days after the employee was first tested. The commission does not credit the employee's claim that she was not aware of the policy, particularly in light of her signature indicating that she received and read the employer's handbook. The employer's policy warned the employee that a positive test result could result in her discharge. The employer's policy was reasonable in light of its concerns about workplace safety and the other potentially adverse effects of illegal drug use.

The commission therefore finds that in week 8 of 2002 the employee was discharged from her employment and for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $8,100.00 for weeks 11 through 35 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 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 8 of 2002, and until seven weeks elapse 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 $8,100.00 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 September 6, 2002
heinjan . urr : 132 : 1 :  MC 651.2  MC 653.3   MC 692.02  

David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission did consult with the ALJ regarding witness credibility and demeanor. The ALJ indicated that he had no specific recollection of any demeanor or credibility impressions he may have had of the employee or the employer. The ALJ's decision focused on the lack of evidence that the employee was impaired at work. However, the commission has previously held that an employer is not required to show impairment at work. Generally, if the employer alerts workers that a positive test may result in discharge, and articulates a reason for such policy that is reasonably related to a valid business interest, misconduct will be found. (1)  The commission finds that the employer met its burden of proof. As indicated above, the commission did not credit the employee's testimony that she did not use marijuana.

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.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


Footnotes:

(1)( Back ) See, e.g. Adams v. Penda Corporation, UC Dec. Hearing. No. 95002425BO (LIRC Aug. 18, 1995), in which the commission stated: 

Prior to the watershed decision in Miller Compressing Company v. LIRC and Flowers, Milwaukee Co. Cir. Ct., Case No. 88-CV-017755 (1989), the commission generally required that evidence of drug use be linked to a work rule prohibiting the use or possession of a controlled substance on the job or impairment on the job either from on-duty use or off-duty use. The court in Miller addressed the issue of whether an employe's discharge for testing positive for an illegal substance in violation of the employer's policy constituted misconduct, even though there was no evidence that the employe used the drug or was impaired by the drug while working. The court in Miller held that a rule which governs off-duty conduct must bear a reasonable relationship to the employer's interest. The court in Miller found such reasonable relationship based on an employer's safety interests and productivity concerns. The court in Miller also noted the difficulty in determining when someone is under the influence. Since Miller, other courts have found that a worker's off-duty use of an illegal substance can be the basis for finding misconduct if the policy is designed to insure the safety of an employer's workers, the public, or improve productivity. See e.g., Dale White v. LIRC and Stoughton Trailers, Inc., Dane Co. Cir. Ct., Case No. 90-CV-5006 (1991)(Prohibition against off-duty use of illegal drugs reasonable in light of employer's interests in the safe and efficient operation of its business); Terrance Shanahan v. LIRC and Brew City Distributors, Milwaukee Co. Cir. Ct., Case No. 94-CV-23 (1994) (Prohibition against off-duty drug use reasonable given employer's interest in safety and the fact that marijuana affects negatively human coordination and performance.) 

Since Miller, the commission has likewise found that off-duty drug use, in violation of an employer's policy, constitutes misconduct connected with the worker's employment. The commission's decisions have echoed the concerns and rationale first enunciated in Miller. In Thomas Trachte v. Madison-Kipp Corp., (LIRC, 2/25/93), the commission stated: ...

[A] rule which prohibits off-duty use of controlled substances is reasonable if it is designed to ensure the health and safety of an employer's workers. In this case, the stated purpose of the employer's rule is to ensure promotion of a safe, productive and a drug-free environment at its workplace. The goal of the rule was to increase the rate and quality of production, and to decrease tardiness and health-related attendance problems. The employer's interests are served by such its(sic) policy and an employe's continued use of illegal controlled substances, is likely to interfere with those interests. The commission, therefore, concludes the employer's rule is reasonable. 

In Brown v. Zander's Creamery, (LIRC, 2/1/90), the commission held that a prohibition against off-duty drug use was reasonable because drug use in the work place is a costly and significant problem, impairment may exist without any outward signs detectable by a lay person, and there is no legally protected right to engage in illegal drug use. Citing such factors, the commission concluded that it is "reasonable to impose a 'blanket' prohibition against illegal use of controlled substances by its employes rather than one which only prohibits impairment while on duty." See also Jonathan Fidler v. Stoughton Trailers, (LIRC, 10/28/92) (A rule which prohibits off-duty drug use of controlled substances is reasonable if designed to ensure the health and safety of the employer's workers.); Robert Kernler Jr. v. Marten Transport Ltd., (LIRC, 2/16/93) (Discharge based on a positive test result for off-duty use of cocaine was for misconduct where policy's purpose was to provide the employer's workers with a drug free workplace and to insure public safety.); Jayson Storts v. Springs Window Fashions Div. Inc., (LIRC, 6/11/93) (Discharge based on a positive test result for off-duty use of marijuana was for misconduct where policy's purpose was to prevent lost productivity, theft, damage to company property, absenteeism, and accidents.); Jeffrey Brandner v. Stone Container Corp., (LIRC, 3/8/95) (Discharge based on a positive post-accident test result for off-duty drug use was for misconduct where policy's purpose was to provide a safe working environment.).


uploaded 2002/09/13