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

AHMAD R YARBROUGH, Employee

AUER STEEL & HEATING SUPPLY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03603863MW


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 the employer, a wholesale distributor of heating and air conditioning systems, for approximately seven years as a material handler. His last day of work was March 10, 2003 (week 11).

On January 24, 2003, the employee signed a document stating that he agreed to undergo monthly drug testing and understood that if any test came back positive his employment would be terminated. On March 3, 2003, the employee tested positive for marijuana metabolites and was discharged as a result.

The issue to be decided is whether the employee's discharge was due to misconduct connected with his employment.

In Boynton Cab v. Neubeck, 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 employe, 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 employe'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' within the meaning of the statute."

The fact that the employee tested positive for marijuana metabolites does not indicate that he ingested marijuana during work hours or on the employer's premises, nor does it indicate that he was under the influence of marijuana at the workplace. Rather, the presence of metabolites establishes only that the employee ingested marijuana at some point while off duty. 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). The commission has 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. Betters v. Kimberly Public School (LIRC, July 29, 2003); Koss v. Menominee Indian Tribe, (LIRC, April 10, 1998). The commission has further held that in order to meet its burden of proof the employer must produce a copy of its rule prohibiting illegal drug use or competent witness testimony as to the content of the rule and that, absent such evidence, the commission cannot conclude that the rule was reasonable and that the employee's violation of it amounted to misconduct. Conners v. Campagna Turano Bakery Inc. (LIRC, April 1, 2003); Barnes v. American Building Maintenance Co of Illinois (LIRC, June 29, 2001).

In this case, the employer's witness testified that the employer has a policy which states that if employees test positive for illegal drugs they will be discharged. However, the employer did not bring a copy of that policy to the hearing and did not establish the content of its rule as it relates to off-duty drug use or regarding the circumstances under which the employer may require a drug test. Absent such evidence, the commission is unable to determine whether the employer's rule is reasonable or whether requiring the employee to submit to a drug test was consistent with that rule. Further, when asked to explain how the employee's off- duty use of marijuana was connected to his job as a material handler, the employer's witness could offer only vague speculation that other people could be injured because of the employee's off-duty drug use.

Although the employee was aware that a positive drug test would result in his discharge, the employer failed to demonstrate that the employee's discharge was pursuant to a policy addressing the employee's off-duty conduct which bore a reasonable relationship to the employer's interests. Consequently, the commission believes that the employer failed in its burden of establishing that the employee's discharge was for employment-related misconduct.

The commission, therefore, finds that in week 11 of 2003, the employee was discharged and not for misconduct connected with his employment, 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 11 of 2003, provided he is otherwise qualified. He is not required to repay the sum of $1,280 to the Unemployment Reserve Fund.

Dated and mailed November 19, 2003
yarbrah . urr : 164 : 1   MC 651.2  MC 651.7

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the appeal tribunal about witness credibility and demeanor. The commission's reversal is not based on witness credibility, but is as a matter of law.


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uploaded 2003/11/24