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

JEFFERY TURNER, Employee

AURORA HEALTH CARE METRO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02605534MW


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 about two years as a dietary assistant for the employer, a health care facility. His last day of work was May 20, 2002 (week 21), when he was discharged.

In January of 2002, the employer received a report that the employee might be under the influence. The employee was therefore given a Breathalyzer test. The employee's Breathalyzer test measured at .035. The employee entered into a last-chance agreement in which he agreed that a positive drug or alcohol screening would result in termination. The employee was randomly tested on May 15, 2002, and his alcohol concentration was .014. The employee was then discharged.

The issue to be decided is whether the employee's discharge was for misconduct connected with his work. 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."

Unlike drugs, consuming alcohol is a legal activity. The commission has previously noted that the employer bears the burden of establishing a work-related reason for the regulation of an employee's off-duty conduct. The commission stated in Blanke v. Weyerhaeuser Co., UI Dec. Hearing No. 98402329MN (LIRC Feb. 18, 1999):

The employe was discharged for violating a return-to-work agreement which prohibited him from consuming any alcohol, whether on or off duty. While an employer does have a right to regulate off-duty conduct, in order for the violation of a work rule relating to off-duty conduct to constitute misconduct, the rule must bear a reasonable relationship to the employer's interests. Gregory v. Anderson, 14 Wis. 2d 130, 137, 109 N.W.2d 675 (1961). In this case, the employer failed to demonstrate any rational work-related reason for the regulation of the employe's off-duty use of alcohol, a lawful substance.

The employer presented only hearsay evidence that the employee was under the influence in January of 2002. Further, a test result of .035 is too low to support an inference that the employee was under the influence. There was no evidence that the employee was under the influence of alcohol or consumed alcohol on the premises in May of 2002. The employee's job duties consisted of cleaning off cafeteria trays. The employer did not establish that the nature of the employee's duties required that he report for work with no detectable amount of alcohol in his system. The employer did not establish a work-related reason for regulating the employee's off-duty conduct. Finally, the commission does not have the authority to infer a reason for the employer's regulation of the employee's off-duty conduct. See Nelson v. LIRC, Case No. 91-CV-181 (Calumet Cty. Cir. Ct. Aug. 13, 1992).

The commission therefore finds that in week 21 of 2002, the employee was discharged but not for misconduct connected with his work for the employer within the meaning of Wis. Stat. § 108.04(5).


DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 21 of 2002, if he is otherwise qualified.

Dated and mailed February 18, 2003
turneje . urr : 132 : 1 : MC 618  MC 692.02

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated that his decision was not based on credibility. The ALJ indicated that he found both parties to be credible. The commission has not reversed the ALJ based on a differing assessment of witness credibility but because it has reached a different legal conclusion than that reached by the ALJ.

cc: Legal Action of Wisconsin


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


uploaded 2003/03/03