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

DAVID G MADING, Employee

METALS USA FULLERTOWN METALS CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02007468FL


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 nearly five years in shipping for the employer, a sheet metal processing business. His last day of work was on September 23, 2002. On September 25, 2002 (week 39) the employer discharged him after he tested positive on September 23 in a urine test for the marijuana metabolite following an on-the- job accident.

The employer's policy prohibits the use, sale, manufacture, transfer or possession of drugs or alcohol on company premises and strictly prohibits any employee from being at work under the influence of drugs or alcohol. Any employee found in violation of this policy will be subject to discipline, including discharge. Employees are subject to testing for alcohol or drugs in their system following, among other situations, an accident which resulted in damage to equipment. In the event the test for drugs or alcohol reveals that the employee is under the influence of a drug or alcohol, as defined by the policy, the employee shall be discharged. The employer defines "under the influence" as having a positive test.

The employee conceded that he had the accident and that he used marijuana the previous weekend. He asserted, however, that the employer had not enforced the drug rule previously. The employer admitted that it was not enforced uniformly and that he was the first case under the employer's recent declaration to be consistent in enforcement. However, the employee was put on notice that the employer did intend to enforce its policy. The employee understood that the employer's policy meant off-duty use of an illegal substance could result in discipline or discharge if he tested positive.

The issue for decision is whether the employer discharged the employee for misconduct connected with the 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."

The employer's policy was implemented in an attempt to protect its workers from the dangers associated with illegal drug use. The employee's job duties were such that the use of such illegal substances could result in damage to the employer's property and/or injury to the employee and other workers. The employee knew that the employer's policy applied to off-duty conduct, and could result in his separation from employment. The commission finds that the employee's off-duty use of an illegal substance, which resulted in a positive drug test, constituted an intentional and substantial disregard of the employer's interests.

The commission therefore finds that in week 39 of 2002 the employee was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $9,102.00 for weeks 40 through 52 of 2002, and weeks 1 and 6 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 commission has previously held that a policy that defines "under the influence" to include a positive drug test, and alerts workers that they can be discharged for having a positive drug test, prohibits off-duty conduct, and the ALJ's conclusion to the contrary was department error. See Stushek v. Graphic Packaging Corp., UI Dec. Hearing No. 02402158AP (LIRC Apr. 10, 2003).

The commission further finds that due solely to department error and not due to any action by the employee, the employee was paid benefits in the amount of $9,102.00, for which the employee was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1) but that recovery of the benefits paid shall be waived, within the meaning of Wis. Stat. § 108.22(8)(c).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 39 of 2002, and until seven weeks elapse 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 not required to repay the sum of $9,102.00 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 July 21, 2003
madinda . urr : 132 : 1 :  MC 651.2  MC 651.4   BR 335.01 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

NOTE: The commission did not consult with the ALJ who presided at the hearing regarding witness credibility and demeanor. The commission's reversal of the ALJ's decision is not based on the demeanor or credibility of the witnesses.


ROBERT GLASER, Commissioner, (dissenting):

I respectfully dissent from the majority's conclusion that the employee engaged in misconduct connected with his employment. If the employer is going to regulate an employee's off-duty conduct it must clearly and unambiguously place the employee on notice that it is doing so. I believe the employer's policy to be anything but clear. The employer's policy defining "under the influence" as a positive drug test is contrary to the plain meaning of that phrase. I can see no impediment or disadvantage to the employer, and any employer, writing a simple policy that states, "If an employee engages in off-duty drug use and has a positive drug test the employee will be discharged."

/s/ Robert Glaser, Commissioner

 

cc: 
Metals USA (Horicon, Wisconsin)
Attorney David C. Hertel


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uploaded 2003/07/28