CHERYL L BAKER, Employee

AMSCO DIVISION, Employer

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:

The employee worked about three months, most recently as an assembler for the employer, a window screen manufacturer. Her last day of work was May 29, 2002 (week 22), when she was discharged.

During the calendar week ending May 25, 2002 (week 21), the employee was injured in a work-related accident. She required medical care. Pursuant to the drug and alcohol policy, she underwent a drug-screening test. A certified laboratory performed the drug-screening test. The test results were confirmed by using gas chromatography-mass spectrometry. The drug test result was positive for marijuana metabolites. The employer discharged the employee based on the drug test results.

The employer's rules of conduct provide:

Employees are prohibited, while on company premises or on company time, from possessing, distributing, selling, using, or being under the influence of alcoholic beverages, illegal or addictive drugs, or drug paraphernalia other than those prescribed specifically for the employee by a physician.

The employer's drug testing program provides:

All employees are prohibited from having in their possession or from the use of alcohol, illegal drugs, drug paraphernalia, narcotics, depressants or other mood-altering substances on the job. The company will require mandatory drug testing of an employee where there is a reasonable obvious suspicion that the employee is under the influence of alcohol, illegal drugs, narcotics, depressants or other mood-altering substances or in the investigation of a vehicular or personal work-related injury or unsafe practices resulting in a doctor treat(sic) or lost time accident or any significant obvious unsafe practice. The company will assist employees with a drug related problem through professional counseling or a qualified Employee Assistance Program.

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

In Boynton Cab Co. v. Neubeck & Ind. Comm., 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 employee, 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 employee'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' with in the meaning of the statute.

The employer asserted that the employee violated its rules of conduct and the provisions of its drug testing program and thereby engaged in misconduct connected with her employment. That contention cannot be sustained. The commission has been consistent in requiring that an employer establish that the employee is alerted, through written policy, that a positive drug test will result in discharge. The commission repeated these requirements Yarbrough v. Auer Steel & Heating Supply, UI Dec. Hearing No. 03603863MW (LIRC Nov. 19, 2003), in which the commission stated:

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).

The employer's policies basically proscribe being under the influence of alcohol or drugs at work, or possessing or using such drugs at work. The employer's policies do not specifically apply to off-duty use of alcohol or drugs. The employer's policies do not place a worker on notice that off-duty use of drugs that results in a positive test result will lead to the worker's discharge. The employer did not put the employee on notice that her off-duty conduct could place her employment in jeopardy and therefore did not demonstrate that the employee engaged in conduct that constituted an intentional and substantial disregard of the employer's interests.

The commission therefore finds that in week 22 of 2002, the employee was discharged but not for misconduct connected with her work for the employer within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 22 of 2002, if she is otherwise qualified.

Dated and mailed April 22, 2004
bakerch . urr : 132 : 1 : MC 651.2

/s/ David B. Falstad, Chairman

James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not consult with the ALJ who presided at the hearing regarding her impressions of witness credibility or demeanor. The commission's reversal of the appeal tribunal decision is not based on credibility. The ALJ found that the employer's policies provide for discharge upon a positive test result for illegal drugs. The commission has reversed the ALJ's decision because the policies submitted at the hearing do not so provide.

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uploaded 2004/04/26