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

ERIC D. TAUBE, Employee

ADVANCED FIBER PRODUCTS INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 96004227LX


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is eligible for benefits beginning in week 31 of 1996, if otherwise qualified.

Dated and mailed March 5, 1997
document5 : 132 : 1  VL 1034

Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision which found that the employe accepted work in week 31 of 1996, that could have been refused with good cause, and that the employe voluntarily terminated that employment in week 31 of 1996 with the same good cause and within ten weeks after starting work. In the petition for review, the employer states that the employer had a written drug policy, that the employe was provided a copy of the company handbook and that the employe signed a document consenting to drug testing. None of these allegations appear in the record. The undisputed testimony offered by the employe was that he was not in fact aware that he would be required to take a drug test prior to being hired by the employer. It was not until after the employe had already began performing services that he was informed that he would be required to take a drug test. Indeed, the employer's witness acknowledged that the employer, subsequent to the employe's last term of employment, had changed its drug testing policy to require post-hire testing. Further, the employer did not present a copy of its drug policy at the hearing nor did the employer offer an explanation as to what interest is being served by such policy.

The employer further argues in its petition that good cause attributable to an employing unit requires some act or omission on the part of the employer justifying the employe's quitting. However, the administrative law judge did not find that the employe quit his employment with good cause attributable to the employer. Rather, the administrative law judge found that the employe had personal good cause for terminating his employment. Such personal good cause allows an individual to quit employment within ten weeks of beginning such employment if the employe could have refused the work in the first instance. In this regard, the department's policy is that a claimant who refuses work because a drug test is required is considered to have good cause unless it is established that the duties or other conditions of the job are such that drug use would present an inherent danger to the safety or well-being of the employe, other employes, or the general public. In applying the aforementioned standard, the employer must establish the need for drug testing. The presumption is that the claimant's right to privacy prevails, except where public safety is a primary consideration or when the danger to the individual's safety, or the safety of others is obvious. The employer, as indicated above, provided no testimony at the hearing establishing the need for drug testing and therefore the employe's right to privacy prevails. The employe would have had good cause for refusing the employer's offer of work in the first instance and, since he quit that work within ten weeks of beginning that work, he had good cause under section 108.04 (7) (e), Stats., for terminating that work.

The employer also maintains that the administrative law judge created findings that were not present and abused his discretion. The employer apparently is referring to the employe's testimony that he was hired by the employer because the employer wish to avoid paying unemployment compensation. Obviously, since the employe so testified the administrative law judge did have a basis in the record for the findings made. In any event, employing a worker in order to avoid unemployment compensation liability is not, in and of itself, impermissible. The finding of good cause in this case, however, is not based on the employer's motivation for hiring the employe, but based on the fact that the employer required that the employe take a drug test without notifying the employe that such testing was a condition of employment, without providing an explanation at the hearing for the need for such testing, and without presenting the policy itself at the hearing. For these reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.

cc: Attorney Peter T. Waltz


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