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

CHERYL M MOON, Employee

QUALITEMPS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03008103MD


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked in one assignment for the employer, a temporary employment agency. This assignment was as a data entry clerk, and began on September 15, 2003, and ended on October 20, 2003 (week 43), the last day the employee worked for the employer.

The issue is whether the separation was a quit or a discharge, and whether it occurred under circumstances which would permit the payment of benefits.

On October 20, 2003, the employer was contacted by the client and told that it appeared the employee was under the influence of alcohol at work. Todd Tatlock, the employer's chief operating officer, traveled to the client's work site as a result. Tatlock observed that the employee's eyes were bloodshot and her speech was slurred. At that time, Tatlock reminded the employee of the employer's drug testing policy (exhibit #3) which states as follows as relevant here:

If . . . there is . . . evidence or symptoms of substance abuse, you will be required to take a drug/alcohol test.

The employer's rules (exhibit #2) also state that it will be considered a voluntary termination if an employee fails to submit to a drug/alcohol screen.

The employee told Tatlock that she did not intend to submit to an alcohol test and signed a document (exhibit #1) which states as follows:

Todd Tatlock of Qualitemps suggested I take an alcohol test today 10/20/03 because the client Datex Ohmeda had reason to believe I was under the influence. Instead of taking the alcohol test Mr. Tatlock suggested, I will instead quit all current and future work with Qualitemps, Inc.

Originally, the document stated that the employee had refused to take the alcohol test. This language was crossed out at the employee's request and the last sentence substituted.

The commission concludes that the separation here was a quit. Although a refusal to participate in an alcohol/drug screen followed by an involuntary separation is typically analyzed as a discharge/misconduct issue, the fact situation under consideration here is distinguishable in that the employee affirmatively declared that she was not refusing the alcohol screen but instead quitting instead of submitting to it.

The question then becomes whether the employee's quitting was for good cause attributable to the employer. Resolution of this question rests on whether the employee's actions justified an alcohol screen pursuant to the employer's rules, and whether the employee's rules are reasonable.

The employer's rules provide for testing if there is evidence or symptoms of substance abuse. Such evidence and symptoms were present here due to the employer's observation that the employee's eyes were bloodshot and her speech slurred, and justified an alcohol screen as a result.

The final question then would be whether the employer's alcohol testing rules are reasonable, i.e., whether they bear a reasonable relationship to the employer's business interests. The commission has not set a very high bar here because, as it noted in Rutkowski v. Hondo, Inc., UI Hearing No. 98601879RC (LIRC Sept. 18, 1998), "sobriety is a standard of behavior that the employer has a right to expect of its employees." The employer had a reasonable interest in assuring that employees it was referring to its clients were not under the influence of alcohol at work. Moreover, the employee was working as a data entry clerk, a position in which accuracy, which could certainly be compromised by alcohol impairment, is an essential component.

The commission therefore concludes that, in week 43 of 2003, the employee quit her employment with the employer, but not with good cause attributable thereto or for any other reason constituting an exception to the quit disqualification of Wis. Stat. § 108.04(7)(a).

The commission further finds that the employee was paid benefits in the amount of $513 for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1), and that waiver of this overpayment is not merited since the initial award of benefits was not based on department error but instead on a differing interpretation of the applicable law.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 43 of 2003 and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times her weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $513 to the Unemployment Reserve Fund.

Dated and mailed June 4, 2004
moonche . urr : 115 : 1    MC 652.2   VL 1080.05

/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 reversing her decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.


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