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

DONALD T WOLTER, Employee

PCA NATIONAL LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03404020GB


On October 21, 2003, the Department of Workforce Development issued an initial determination which held the employee's discharge was not for misconduct connected with his employment. The employer filed a timely request for hearing on the adverse determination, which was held on February 25, 2004 in Green Bay, Wisconsin before a department administrative law judge. On February 27, 2004, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employee filed a timely petition for commission review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the record and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked a few months as a studio associate for the employer, a retail photography business. The employer discharged him on October 5, 2003 (week 41) for having failed, several days earlier, to report a minor injury and take a "post- incident" drug test, and the issue is whether those failures by the employee were misconduct for unemployment insurance purposes. The commission concludes that they were not, and so reverses the appeal tribunal decision.

The employer discovered the injury, when the employee had lunch a few days afterwards with a district manager. The employee was critical of a certain co- worker and the employer in general, and indicated that a background had fallen, resulting in the employee receiving a scratch on his face. The district manager asked the employee whether he had reported the incident and undergone employer-required post-incident drug testing. The employee indicated that he had not, that he believed servicing the customers was more important. The district manager told the employee that this failure was grounds for immediate separation, and subsequently did discharge the employee for having violated the employer's safety policy by failing to report the incident and take a required post-accident drug test.

The employer's work rules define an "incident" to include an "unfortunate event such as a slip, trip, fall, hit by, bumped by or cut from, etc. which occurs on or around our portrait studio or in the course of doing company business." The rules indicate that an incident can occur with no injury and/or no need for medical attention). The employer's rules further require that all incidents must be reported to the employer and that, following any work incident, the employee involved must take a drug test within 24 hours.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. In the drug testing context, an employee's failure to undergo a drug test when the employer's rules call for such, can be misconduct. For it to be so, however, the rule in question must be a reasonable one and, in the present case, the employer's rule simply is not. The employer's work rules include slips, trips, and bumps as incidents following which an employee must undergo the intrusion of an employer-required drug test. It simply is not reasonable, to require an employee to undergo a drug test after having tripped over a loose corner of a rug or after having accidentally bumped into a co-worker, for example. The employer's rules on their face require exactly that, however; they therefore are unreasonable and so may not be the basis for a finding of misconduct in the context of this case.

The commission therefore finds that, in week 41 of 2003, the employee was discharged but not for misconduct within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 41 of 2003 if he is otherwise qualified. There is no overpayment, as a result of this decision.

Dated and mailed May 27, 2004
woltedo . urr : 105 : 1 MC 651.1

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, in contrast to the administrative law judge's conclusion that the employer's rule regarding drug testing is reasonable, the commission has concluded that it is not.

cc: PCA National (Appleton, Wisconsin)


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uploaded 2004/05/28