Wis.LIRC UC Decision: Parks, Ava - January 8, 2004 - VL 1005.01 - Cause attributable to Employer; generally; VL 1080.20 - Working Conditions - Reprimand, criticism, mistreatment, discrimination; VL 1080.05 - Working Conditions - Company Rule or Policy; MC 652.1 - Drug, Alcohol rules - Testing - Grounds for - "random", "reasonable suspicion", post-accident - 'write-ups' not good cause to quit where not shown to be unreasonable, but employee had good cause to quit where subjected to required drug testing under circumstances not authorized by employer's drug testing policy

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

AVA M PARKS, Employee

SPECIALTY CARE SERVICES LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03605702MW

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 20 of 2003, if otherwise qualified.

Dated and mailed January 8, 2004
parksav . usd : 115 : 2 VL 1005.01 VL 1080.20 VL 1080.05 MC 652.1

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION
The commission agrees with the administrative law judge that the record supports a conclusion that the employee voluntarily gave up her supervisory position due to the fact that she had received two written counselings (write-ups) and had been required to undergo a drug screen in her two weeks as a supervisor.

When an employee voluntarily reduces her hours for an indefinite period of time, it is a quit. Wis. Stat. § 108.04(7m). See, Lipscomb v. St. John's Home of Milwaukee, UI Hearing No. 98606449MW (LIRC March 30, 1999).

It is the employee's burden to prove that this quit satisfies some exception to the quit disqualification. The employee argues by implication that she quit with good cause attributable to the employer.

The employee did not show that the two write-ups she received as a supervisor were not reasonably justified or otherwise provided good cause for her quitting. Although she indicated in her written comments on the first (page 1 of exhibit #4) that she disagreed with "part of it," she fails to detail in these comments or in her testimony the nature of her disagreement. The second (page 2 of exhibit #4) was an attendance warning for failing to work a scheduled shift. Someone wrote on this warning that the employee refused to sign the warning because she had been told she would not be scheduled to work Mondays and Fridays (the date in issue was Friday, May 2, 2003). However, the employee offers no hearing testimony or other evidence to establish this, and, even if she had, a single attendance warning would not be sufficient to provide good cause.

As a result, the dispositive issue is whether the requirement that the employee undergo a drug test based on a report that she appeared to be under the influence of a controlled substance was sufficient to provide good cause for her quitting. Because such testing essentially restricts off-duty conduct, may carry with it implications of criminal wrongdoing, and intrudes on an employee's performance of a bodily function, the commission has held employers to a high standard when they seek to carry out such testing by generally requiring that the employer demonstrate both a legitimate business purpose for the testing and that its employees were provided notice of the circumstances which trigger the testing requirement. Here, the employee testified that the employee handbook only permits drug testing if there is an on-the-job injury. The administrative law judge apparently did not find the employer's contrary testimony more credible, and there is no persuasive reason in the record, particularly given the failure of the employer to introduce the handbook as an exhibit, to overturn this credibility determination. The commission concludes that requiring the employee to submit to a drug test under circumstances not authorized by the employer's drug testing policy provided good cause attributable to the employer for her quitting.

The employer offers its employee handbook as a part of its petition for commission review. However, since the handbook is not a part of the hearing record, and since a remand for additional hearing is not merited because the record shows the handbook was available to the employer at the time of hearing, it may not be considered as a part of the commission's decision here.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2004/01/12