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

ROGER E STEELE, Employee

WAL MART ASSOCIATES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03002369WU


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 four months as a customer service and general maintenance worker for the employer, a retail business. His last day of work was February 11, 2003 (week 7) and the employer discharged him later that week.

The employee was discharged for violating the employer's drug and alcohol policy. The policy prohibits the use, possession, sale, transport, or purchase on duty of drugs and alcohol. The policy also states that associates are prohibited from reporting to work "under the influence" of alcohol. The policy does not define "under the influence." The policy further states "associates who fail a drug/alcohol test will be terminated." The employee understood that he could be fired if alcohol was in his system.

The employee went ice fishing prior to his work shift that began at 9:00 p.m. The employee admittedly had several drinks. The employee acknowledged that he might have smelled of alcohol, but denied being intoxicated. The employer's witness testified that she smelled alcohol on the employee during a break. However, she did not believe he was intoxicated. She did not notice any physical impairment. The employee was sent for an alcohol test. The result of the test was positive for blood ethanol at  .049.

The issue to be decided is whether the employee was discharged for misconduct connected with his 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 apparently considers a worker to have "failed" an alcohol test if the presence of alcohol is detected in the worker's system. Thus, an employee is subject to discharge, based on the policy submitted at the hearing, for a blood ethanol level of .001. The employer's policy has the effect of regulating the employee's activities during off-duty hours. While an employer does have a right to regulate off-duty conduct, in order for the violation of a work rule relating to off- duty conduct to constitute misconduct, the rule must bear a reasonable relationship to the employer's interests. Gregory v. Anderson, 14 Wis. 2d 130, 137, 109 N.W.2d 675 (1961). In this case, the employer failed to demonstrate any work-related reason for the regulation of the employee's off-duty use of alcohol. Further, there was no evidence presented by the employer that the employee was impaired. The employer's policy has the effect of regulating the employee's off-duty conduct -- the consumption of alcohol. The employer must establish a business related reason for controlling the employee's off-duty conduct where, as here, it has not established that the employee's performance has been impaired by his off-duty behavior. There is no indication in the record as to what business interest is being served or protected by regulating the employee's legal off-duty behavior.

The commission therefore finds that in week 7 of 2003, the employee was discharged but not for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 7 of 2003, if he is otherwise qualified. There is no overpayment with respect to this issue.

Dated and mailed September 17, 2003
steelro . urr : 132 : 1 :   MC 652.5  MC 653.1

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The commission's reversal of the ALJ's decision is not based on credibility or demeanor but is as a matter of law.

cc: Wal-Mart Associates, Inc. (Wausau, Wisconsin)


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uploaded 2003/09/23