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

CLAUDETTE JOE, Employee

BURNS INTERNATIONAL SECURITY SERVICES CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03605195MW


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, if otherwise qualified.

Dated and mailed February 27, 2004
joecl . usd : 150 : 8  MC 651.2 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employer timely petitioned the appeal tribunal decision, arguing that the employee's behavior in reporting to work with a traceable amount of an illegal drug in her system, violated the employer's drug free workplace policy and, therefore, constituted misconduct connected with her employment. Specifically, in its petition, the employer's representative asserted that the policy states, "employees are prohibited from reporting to work while a controlled substance is in their system." However, the record does not support this assertion. Instead, the policy states,

Pinkerton and Burns prohibit the possession, use, consumption, manufacture, sale, purchase, transfer, distribution and/or transportation of alcohol, illegal drugs and/or controlled substances during work hours, while performing company business, while wearing a company uniform, while on company premises or company work sites.

Repeatedly, the commission has held that in order to deny benefits for off-duty illegal drug use, based upon a positive drug test, the employee must knowingly violate a written rule prohibiting both on-duty and off-duty use of illegal drugs and spelling out the consequences of a positive test result. Ahmad R. Yarbrough v. Auer Steel & Heating Supply, UI Dec. Hearing No. 03603863MW (LIRC Nov. 19, 2003)(LIRC, UI Dec. ).

The commission finds that the employer's policy, as presented at the hearing, simply does not meet this standard. No language expressly prohibits off-duty use of illegal drugs, resulting in measurable amounts of illegal drugs in one's system.

Additionally, no evidence was presented at the hearing to suggest that the employee used the illegal prescription medicine at work or that she was impaired by it at work. In fact, the employer's decision to allow the employee to drive herself to the drug test site would undermine such a position. The petitioner's final argument that the employee caused the accident, which prompted the drug test, is also without any support in the record.

In conclusion, the Commission finds that employer failed to establish that the employee violated its "drug free workplace" policies. For this reason and those already stated in the appeal tribunal decision, the employee's discharge was not for misconduct connected with her employment.

cc: 
Burns International Security - West Allis, WI 53227
Sheakley Uniservice
Continental Consultants


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uploaded 2004/03/02