ANTHONY J BETTERS, Employee

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

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 29 of 2002, if otherwise qualified.

Dated and mailed July 29, 2003
bettean . usd : 178 : 1  MC 651.1  MC 651.2  PC 749 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

Most recently the employer has asked the commission to conform its decision to that of the grievance arbitrator who recently found that the employee's discharge was justified. The commission does not base its decisions on the findings of outside fact-finders, with the exception of judgments of conviction in criminal cases involving on duty conduct. The parties had a full and fair opportunity to bring evidence and argue their positions before the ALJ. The commission will limit its review to the record created at the hearing.

The employer argues that it discharged the employee for violating its drug policy by using drugs on duty and selling drugs outside work. It passionately argues that it has an obligation as a community role model to its students to enforce its drug policies. While the commission can sympathize with the stresses involved in modeling good behavior to students, its drug policy does not cover the employee's situation and did not place him on notice that his off-the-job conduct placed his employment in jeopardy. The employer failed to prove with any non-hearsay evidence that the employee was guilty of on-duty drug use.

The employer's drug policy prohibits the manufacture, possession, use, distribution, or dispensing of a controlled substance, including alcohol, and any drug paraphernalia, by staff at any time while on district property or involved in a district activity or event [emphasis added]. This is clearly a reference to on-duty conduct. The employer argues that the preamble to its policy, which states that it's goal is to establish and maintain an educational setting which it not tainted by use or evidence of use, is a clear indication to the employee that its policy extends to off-duty use. The ALJ rejected this argument and found that the language was too vague to put the employee on notice that his off-duty conduct was covered. The commission agrees. She also did not find that the employee's statements concerning his legal problems were untruthful or that the employer's policies placed him on notice that such disclosure was necessary.

The commission most often encounters employer rules designed to regulated off-duty drug use in a drug testing context. In Koss v. Menomonee Indian Tribe, UC Dec. Hearing No. 97-400031 (LIRC Apr. 10,1998), the commission set out its position on off-duty drug policies and what standards the employer must follow in order to regulate off-duty drug use. First, it provides that in order to deny benefits for off-duty drug use based on a positive test the employee must knowingly violate a reasonable employer rule prohibiting off duty use of illegal drugs. To be reasonable the rule must meet the following criteria:

"(1) The rule prohibits both on duty and off duty use of illegal drugs, is known to the employee, is provided in writing, and spells out the consequences of a positive test result; or

"(2) The rule implements drug testing which is mandated by either state or federal law and the employee is provided written copies of both the legal mandates and the consequences of a positive test result."

Indeed, the commission has been admonished for relieving the employer of its responsibility to show that off-duty conduct is sufficiently connected to a worker's employment to find misconduct. In Nelson v. LIRC and DHL Airways, Inc., No. 91-CV-181 (Wis. Cir Ct. Calumet County Aug. 13, 1992), the employer had a written policy which provided for discharge for an off-duty violation of driving while under the influence of alcohol or controlled substances. The employee was aware that he could be discharged for a conviction for driving under the influence. The employee was in fact convicted of driving under the influence and was discharged as a result. The commission found misconduct, inferring that the rule was reasonable because the public might adversely view the employer if it would employ drivers with such off-duty violations. The court reversed the commission stating:

" . . there is absolutely no evidence in the record of the hearing which supports this inference. Even if true, this conclusion of the Commission can only be described as conjecture. It is not the job of this Court nor the Commission to supplement the record made before the hearing examiner with evidence that might have been offered. . . .

". . . The employer may well have had valid and compelling reasons for the off-duty work rule in question, which may have included the inference found by the Commission, as well as the uninsurability of hired drivers with OMVWI convictions, but no such evidence or concerns were expressed by [the employer] at the hearing. [The employer] introduced no evidence that it was adversely affected other than the claimed license and federal regulation consequences, both of which concerns were unfounded. As a side note it is not important how the public perceives [the employer's] employment policies in this context as long as its business interests are not adversely affected. Gregory, supra at 138. What the Commission infers from the evidence is nothing more than a conjecture which lacks support from the record, and this Court cannot assume how the employer could or should have created a record which would have supported the Commission's conclusion."

Nelson, at 3-4.

In this case, the employer's rule does not expressly refer to off-duty conduct. It limits itself to employer property or events. Work-relatedness is clearly intended here despite the employer's wish to expand its application to the employee's situation. No on-duty drug use was established.

The employer is understandably concerned about the criminal matters and the perception that the school might condone such conduct. However, the employee's activities had nothing to do with his work and he was not on notice that such convictions would jeopardize his employment. While the employer made a reasonable business decision to discharge the employee, the commission cannot conclude that the discharge was for misconduct connected with his employment.

cc: 
Attorney Mark K. Yokom
Attorney Dennis M. Selby

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uploaded 2003/08/12