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

ERIC J COLEMAN, Employee

U LINE CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03602548MW


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, except that it makes the following modifications:

The fourth paragraph of the Findings of Fact and Conclusions of Law section is modified to read as follows:

The employer failed to prove that its policy provided reasonable notice to the employee that off-duty drug use, as confirmed by a positive drug test result, was prohibited and could lead to his termination, and failed to show as a result that the employee was discharged for misconduct connected with his employment.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 8 of 2003, if otherwise qualified.

Dated and mailed October 7, 2003
colemer . umd : 115 : 1  MC 651.2   MC 651.4

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee worked fifteen months as an assembly line production worker for the employer, a refrigerator/freezer manufacturer.

The employee did not appear at the hearing.

The employer testified that the employee was sent for a routine drug screening after he was involved in an accident; that the test results indicated the presence of cocaine metabolites in his system; that the employer considered him to be in violation of its policy prohibiting workers from being under the influence of drugs at work; and that the employee was discharged as a result.

The employer's work rules (exhibit #4) state as follows, as relevant here:

The company believes it is desirable to establish rules to help ensure that all employees work together peaceably, safely and with due respect for the rights of each other. Therefore, all employees will be required to abide by reasonable rules of conduct as determined by the company.

These rules forbid:

. . .Possession of or use of alcohol or controlled substances on company premises, or reporting to work under the influence of alcohol or controlled substances. . .

The abuse, misuse, illegal possession of drugs, or being under the influence of any type of controlled substance on company premises.

In the event of a violation of company rules or of other conduct requiring disciplinary action, any of the following penalties may be imposed according to the frequency and/or severity of the offense:

Verbal Warning
Written Warning
Disciplinary Suspension
Termination of Employment

The letter of discharge (exhibit #2) states as follows, as relevant here:

U-Line Corporation is making every effort to keep our company drug- free. Studies show people using controlled substances or abusing alcohol tend to have more accidents, higher levels of absenteeism, and incur greater medical expenses than those people not using or abusing. As you were informed at the time of hire, one of our qualification requirements is a clean drug screen.

We are now informed by the drug testing laboratory that your test was positive for a controlled substance.

As you were aware from our Operational Rules in our Employee Handbook, the abuse, misuse, illegal possession of drugs, or being under the influence of a controlled substance on company premises will result in disciplinary action up to and including termination. .

The properly certified test results (exhibit #1) state that the employee tested positive for cocaine metabolites, and that these metabolites remain in a person's system for 3-4 days after use of cocaine.

The dispositive issue here is whether the employee was on notice that off-duty drug use was prohibited by the employer and could result in his discharge. In Koss v. Menonomee Indian Tribe, UI Hearing No. 97-400031 (LIRC April 10, 1998), the commission held that, in order to deny benefits for off-duty drug use based on a positive drug test, the employee must knowingly violate a reasonable employer rule prohibiting off-duty use of illegal drugs, and, to be reasonable, the employer's rule must prohibit both on-duty and off-duty use of illegal drugs, be known to the employee, be set forth in writing, and spell out the consequences of a positive test result.

In Alexander v. Unified Solutions, Inc., UI Hearing No. 03600003RC (LIRC July 10, 2003), the commission held that a policy providing for immediate termination for coming into work "under the influence of drugs" did not meet the requirements set forth in Koss.

The only essential difference between the policy under consideration here and that in Alexander, supra., is the statement in the discharge letter here that, "As you were informed at the time of hire, one of our qualification requirements is a clean drug screen." Although the author of this letter identified it at hearing, there was no testimony that he was the one who actually stated this to the employee or that he otherwise witnessed it being stated to the employee. There is also no evidence in the record to explain precisely what was meant by this statement, how it was explained to the employee, or how it dovetailed with the employer's drug policy.

The language of the employer's policy, even taking into account the statement in the discharge letter, is sufficiently ambiguous to compel the conclusion that the employer did not place the employee on notice that off-duty drug use, as confirmed by a positive drug test result, could result in his discharge. Although the employer's policy prohibits the "abuse" or "misuse. . .of controlled substances," it is not reasonably apparent from the context in which this language occurs in the policy that this prohibition would apply to off-duty conduct as well as on-duty conduct; and it is not reasonably apparent from the language of the employer's policy that the employer's determination that an employee was "under the influence of" a controlled substance at work could be based on a positive drug test.

The commission concludes as a result that the employer failed to sustain its burden to prove misconduct.


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uploaded 2003/10/27