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

JOAN M. HACKNEY, Employee

AMERITECH SERVICES INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02600497MW


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 47 of 2001, if otherwise qualified.

Dated and mailed July 16, 2002
hacknjo . usd : 132 : 8   MC 652.5  MC 653.1

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision that found the employee was discharged from her employment but not for misconduct connected with her work. The employer maintains that based on the smell of alcohol on the employee's breath it had a right to test the employee. The commission does agree that the employer had a right to test the employee. However, the commission disagrees with the employer that it established that the employee engaged in conduct that evinced an intentional and substantial disregard of the employer's interests. The employer's policy prohibits the use, possession, sale, conveyance, distribution or manufacture of illegal drugs or controlled substances at work. The employee did not violate the employer's prohibitions involving illegal drugs or controlled substances. The employee tested positive for alcohol at .033 and .029. The employer's policy provides that individuals who are impaired while on the employer's premises or during the conduct of the employer's business will be subject to discipline up to and including discharge. The employer's policy defines "impairment" as being under the influence such that the "employee's coordination, reactions, reliability, judgment, and/or motor senses are or appear to be affected." The employer did not establish that the employee met its definition of impairment. The employer did not establish that there was any correlation between the level of alcohol in the employee's system and its definition of impairment.

For the above reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.

cc: 
Ameritech Services
Attorney Heather J. Langemak


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