RONALD ALEXANDER, Employee

UNIFIED SOLUTIONS INC, Employer

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:

The employee worked for approximately two years as a stock handler for the employer, a packaging company. The employee's last day of work was December 2, 2002 (week 49), when he was discharged.

The employer's application for work states that the employer has a drug-free workplace. The employer's orientation handbook provides that "IMMEDIATE TERMINATION will result for . . .coming into work under the influence of drugs/alcohol."

On November 25, 2002, the employee was involved in an accident in his forklift. The employee acknowledged "hitting a skid," but denied hitting a rail, as claimed by the employer. Both parties acknowledged that the product on the pallet that the employee was conveying had to be "re-palletized." The employer claimed there was some damage to the product itself.

Approximately 20 minutes after the accident, the employee was asked to submit to a drug and alcohol test. The test came back positive for marijuana. On December 2, 2002, the employer discharged the employee as a result of his positive test results.

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constituted misconduct connected with the 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 finds that the employee's discharge was not for misconduct connected with his work. The employer's policy did not specifically put the employee on notice that a positive test result would end his employment. Where the employer is attempting to regulate off-duty conduct, and the employer does not establish that the employee's job performance was actually impaired by such off-duty conduct, the employer is required to make known to each and every employee the conduct that will result in a discharge. Clearly, the employer has an interest in ensuring that workers do not operate a forklift or otherwise engage in work activity under the influence of an illegal substance. However, there is no evidence in this case that the employee was under the influence of any illegal substance while at work.

The commission therefore finds that in week 49 of 2002, the employee was discharged but not for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 49 of 2002, if he is otherwise qualified.

Dated and mailed July 10, 2003
alexaro . urr : 132 : 1 : MC 651.4

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not consult with the administrative law judge regarding credibility and demeanor. The commission disagrees with the administrative law judge's legal conclusion that the employee's actions constituted misconduct given the employer's failure to specify that a positive drug test would result in his separation. It is the employer's obligation to provide written notice of the consequences of a positive drug test and not the employee's obligation to extrapolate such consequences from the employer's conduct. The employer presented no evidence at the hearing that the test results demonstrated that the employee's work performance was impaired at the time of the accident.

cc: Ronald Alexander

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uploaded 2003/07/14