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

KIRBY L MCCLARY, Employee

AACER FLOORING LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02403673AP


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 36 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 performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed May 15, 2003
mcclaki . usd : 115 : 9   MC 651.1  MC 652.5

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

MEMORANDUM OPINION

The employee worked for more than three years as a machine operator for the employer, a manufacturer of hardwood flooring.

The employee was aware of and had received a copy of the employer's drug policy; the employer's drug policy prohibits working or reporting to work with any detectable alcohol present in an employee's system, and provides that violation of the policy could subject an employee to discipline up to and including termination; the employee admits drinking "a lot of alcohol" immediately before reporting to work; the employee does not dispute the results of the alcohol test; and, even if the employee had disputed these results, the employer properly completed and returned the department's UI drug report forms (exhibit 3) which indicate a blood alcohol level of  .11 after the sample was analyzed by Kroll Laboratory Specialists.

The final question is whether the employer sustained its burden to prove that it established a valid business reason for what, in essence, is its restriction on the employee's ability to engage in a legal activity, i.e., the consumption of alcohol, during off-duty hours.

In Miller Compressing Company v. LIRC and Flowers, Case No. 88-CV-017755 (Wis. Cir. Ct. Milwaukee County Oct. 4, 1989), the court established the test that a rule which governs off-duty conduct must bear a reasonable relationship to the employer's interests. The court in Miller found such a reasonable relationship based on an employer's safety interests and productivity concerns. Since Miller, the commission and courts have found misconduct for violations of policies prohibiting off-duty drug use where the employer has established a valid business interest that is served by such policy. See e.g., White v. LIRC and Stoughton Trailers, Inc., No. 90-CV-5006 (Wis. Cir. Ct. Dane County Nov. 24, 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); Shanahan v. LIRC and Brew City Distributors, No. 94-CV-23 (Wis. Cir. Ct. Milwaukee County Dec. 30, 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); and McMillan v. Asplundh Tree Expert Co., UI Hearing No. 96-200284 (LIRC Sep. 4, 1996) (discharge for positive drug test was for misconduct where policy was implemented to protect the health and safety of workers). The commission has extended this same test to employer policies which implicitly limit an employee's ability to engage in a legal activity, such as consuming alcohol, during off-duty hours. See, e.g., McKinney v. Goodwill Industries of Southeastern Wisconsin, Inc., UI Hearing No. 99607221MW (LIRC Jan. 31, 2000); Twining v. Plexus Corp., UI Hearing No. 00402697AP (LIRC Jan. 17, 2001); Turner v. Aurora Health Care Metro Inc., UI Hearing No. 02605534MW (LIRC Feb. 18, 2003)(the employer did not establish that the nature of the employee's duties, cleaning off cafeteria trays, required that he report for work with no detectable amount of alcohol in his system).

Here, many of the employer's workers, including the employee, operate dangerous machinery. Given these circumstances, the employer has established a valid business reason, i.e., the health and safety of its workers, for its implicit regulation of off-duty alcohol consumption by its employees.

In his petition for commission review, the employee states "I know that I messed up" but that this was the ". . . first screw up on [the] job I have ever had" as the basis for this appeal.  His contrition, however, does nothing to disturb the evidence of record here which the commission concludes supports a finding of misconduct.


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uploaded 2003/05/27