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

KIMBERLY D COLEMAN, Employee

LAIDLAW TRANSIT INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02602286RC


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 for three months as a bus monitor for a school bus transportation business. Her last day of work was January 4, 2002 (week 2.) She was discharged on January 8, 2002 when the employer received notice that she had tested positive for cocaine.

The employer has a policy on drug testing. It provides that "No employee shall operate a company vehicle, report to duty or remain on duty while under the influence of alcohol or drugs. Violation of this policy will result in immediate dismissal and possible charges by law enforcement." It further provides that testing positive for a controlled substance or refusing to be tested is prohibited. Tests for employees who are not in safety sensitive positions, such as the employee, are subject to reasonable suspicion testing.

On the employee's last day of work, the employer received an anonymous tip that the employee had been using drugs. It advised her to report for a drug test. She did so. The employer received notice that the employee had tested positive for cocaine. The employee was discharged.

At the hearing, the employer offered certified drug test results into the record, which showed that the employee tested positive for cocaine. The test was performed by a lab licensed by the Substance Abuse And Mental Health Services Administration (SAMHSA), formerly NIDA. SAMHSA is a subagency of the federal Department of Health and Human services.

The issue 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 employee tested positive for drugs in violation of the employer's policy forbidding a positive drug test. The employee was on notice that she would be discharged for testing positive.

The employer's manual on drug testing provides that testing shall be conduced using a DOT certified lab. The lab which tested the employee's sample was not DOT certified but was certified by the U.S. Department of Health and Human Services. The ALJ concluded that the test result's reliability could not be guaranteed if the lab was not DOT certified. While the commission is not bound by the department's policy manual, it does on occasion look to it for guidance. In determining which drug test results would be sufficiently reliable on which to base a finding in a unemployment case, the department concluded that a reputable laboratory using test methods mandated by the U.S. Department of Health and Human Services or the Wisconsin State Lab or Hygiene would be acceptable. (U I Benefits Manual Vol. 3, Part VII, Ch. 1, pg. 86.) The employee has not asserted that the procedures in her testing raised inherent reliability issues. Therefore, in this instance, the commission finds that the SAMHSA certified lab's results are sufficiently reliable basis on which to base a finding of misconduct. Moreover, the commission does not credit the employee's denial of drug use.

The commission therefore finds that in week 2 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 $2,769 for weeks 6 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 2 of 2002, 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 $2,769 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 January 22, 2003
colemki . urr : 178 : 1   MC 652.4

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility with the ALJ before deciding to reverse. The ALJ did not believe the lab was sufficiently reliable and considered the employee's denial of drug use credible. However, the commission reaches the contrary conclusion.

cc: Continental Consultants


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