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

THERESA L PERZENTKA, Employee

ATM SOLUTIONS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02403427AP


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, and after consultation with the ALJ, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for almost three years as an ATM technician for a business providing ATM services to financial institutions. She was discharged on April 15, 2002 (week 16).

In March, 2002, it came to the employer's attention during a routine audit that machines serviced by the employee were thousands of dollars short. The employee was suspended with pay pending investigation pursuant to an employer policy. On April 1, the employee agreed to cooperate fully with the employer in its investigation of the shortfall. She disclaimed any knowledge of the missing money. She was directed to meet with an outside investigator and told she would take a polygraph test during that meeting. The parties did not discuss drug testing at that time but the employer testified that drug testing was a routine part of shortfall investigations.

At the time of hire, the employee signed an acknowledgement that as a condition of hire she would be subject to pre and post-employment drug testing and that a positive test or a test refusal would result in the end of the employment relationship.

The employee met with the outside investigator on April 9. He interviewed her about her background and then told her she would be taking a drug test. The employee began crying and stated that she could not take the test. She explained to the investigator that the day before had been her birthday and she had been drinking heavily and had smoked marijuana and used cocaine. The investigator told the employee to sign the drug testing form and to write "refused" on it which she did. The investigator did not conduct the polygraph test because in his judgment the employee was still impaired. The employer discharged the employee for refusing to take the drug test.

The issue to be decided is whether the employee's discharge was 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 employer testified, and the employee acknowledged, that drug testing is necessary for workers in the employee's position because they are required to handle large sums of cash unsupervised. The employee also testified that she knew off-duty drug use could result in her discharge.

The employee refused the test because she knew she would test positive based on her admitted illegal drug use. The employer's policy clearly lays out the consequences of a test refusal and articulates the employer's intention of testing. The employee had notice of the rule when she was hired and the employer's rule to require drug testing of employees who handle money was a reasonable one. Therefore, the commission concludes that the employee's refusal to take a drug test amounts to a deliberate and substantial disregard of the employer's interests.

The commission therefore finds that in week 16 of 2002, the employee was discharged from her employment and that the discharge was 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 $9,234 for weeks 16 of 2002 through week 26 of 2002, and weeks 31 of 2002 through week 10 of 2003, 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 16 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. There is a total overpayment of $9,234, of which $155 has already been recovered and is included in overpayment amounts set forth by Form UCB-37 dated October 21, 2002 and an initial determination dated October 30, 2002. The employee is required to repay the sum of $9,079 to the Unemployment Reserve Fund as a result of the above decision.

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 9, 2003
perzeth . urr : 178 : 1  MC 651.2   MC 651.4   MC 652.2

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

James T. Flynn, Commissioner


MEMORANDUM OPINION

The commission consulted with the ALJ prior to reversing to discuss witness credibility. The ALJ credited the employee's testimony that she was unaware that a test refusal was grounds for discharge. However, the employee signed an acknowledgment of the employer's policy at the time of hire and the commission believes that she was aware of the consequences of a test refusal and of off-duty use of illegal drugs on her continued employment. The employee acknowledged at the hearing the reasonableness of the employer's rule for jobs such as hers which required her to carry large amounts of cash in an unsupervised setting.


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uploaded 2003/05/16