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


JOHN N KOSS, Employe

MENOMINEE INDIAN TRIBE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97400031GB


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 employe is eligible for benefits beginning in or as of week 45 of 1996, if otherwise qualified.

Dated and mailed: April 10, 1998
kossjoh.usd : 132 : 1 MC 651.1  MC 651.4  MC 692.02

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision which found the employe was discharged from his employment but not for misconduct connected with his work. The employer maintains in its petition that its ordinances, enacted as an exercise of the employer's self- governance, are not reviewable by a state court, state agency, or other state governmental body. However, the commission simply does not have the authority to address the employer's sovereignty arguments. What the commission does have the authority to address is whether the employer's evidence establishes that the employe engaged in intentional and substantial disregard of the employer's interests or of standards of behavior the employer had a right to expect of the employe. After reviewing the record in this matter, the commission agrees with the administrative law judge that the employer has not established misconduct on the part of the employe.

First, the department's policy provides that in order to deny benefits for off-duty drug use based on a positive test the employe must knowingly violate a reasonable employer rule prohibiting off duty use of illegal drugs. To be reasonable the rule must meet the following criteria:

"(1) The rule prohibits both on duty and off duty use of illegal drugs, is known to the employe, is provided in writing, and spells out the consequences of a positive test result; or

"(2) The rule implements drug testing which is mandated by either state or federal law and the employe is provided written copies of both the legal mandates and the consequences of a positive test result."

Wisconsin Unemployment Compensation Manual, Vol. 3, Part VII, Ch. 2, pp. 14-14A.

The commission must agree with the administrative law judge that the employer's 100-page policy is more than an employe can be expected to remember throughout his employment. Further, the employe was not provided a copy of that policy nor did he have easy access to such policy. Further, neither in the employer's testimony nor in the drug policy itself did the employer present a reason for regulating the off-duty conduct of workers. The courts and commission have generally required some explanation from the employer as to why its business interests necessitate regulating an employe's off-duty conduct. It is not enough to establish that a work rule has been violated, as the mere violation of a work rule does not establish misconduct. The commission must determine whether the rule was reasonable and whether the employe's conduct in violation of the rule was an intentional and unreasonable interference with the employer's interests, regardless of what construction is put on the rule or the reasonableness of the rule. Milwaukee Transformer Co. v. Industrial Commission, 22 Wis. 2d 502, 512 (1964). Further, where the rule concerns off-duty conduct, the conduct must be reasonably related to the employer's interests. Gregory v. Anderson, 14 Wis. 2d 130, 137 (1961).

In Adams v. Penda Corporation, UC Hearing No. 95-002425 (LIRC Aug. 18, 1995), the commission stated:

"Prior to the watershed decision in Miller Compressing Company v. LIRC and Flowers, Case No. 88-CV-017755 (Wis. Cir. Ct. Milwaukee County Oct. 4, 1989), the commission generally required that evidence of drug use be linked to a work rule prohibiting the use or possession of a controlled substance on the job or impairment on the job either from on-duty use or off- duty use. The court in Miller addressed the issue of whether an employe's discharge for testing positive for an illegal substance in violation of the employer's policy constituted misconduct, even though there was no evidence that the employe used the drug or was impaired by the drug while working. The court in Miller held that a rule which governs off-duty conduct must bear a reasonable relationship to the employer's interest. The court in Miller found such reasonable relationship based on an employer's safety interests and productivity concerns. The court in Miller also noted the difficulty in determining when someone is under the influence. Since Miller, other courts have found that a worker's off-duty use of an illegal substance can be the basis for finding misconduct if the policy is designed to insure the safety of an employer's workers, the public, or improve productivity."

Since Miller, the commission and courts have found misconduct for violations of policies prohibiting off-duty drug use where the employer has established a valid business interest that is served by such policy. See e.g., White v. LIRC and Stoughton Trailers, Inc., No. 90-CV-5006 (Wis. Cir. Ct Dane County Nov. 24, 1991) (prohibition against off-duty use of illegal drugs reasonable in light of employer's interests in the safe and efficient operation of its business); Fidler v. Stoughton Trailers, UC Hearing No. 91-005654 (LIRC Oct. 28, 1992) (a rule which prohibits off-duty drug use is reasonable if designed to ensure the health and safety of the employer's workers); Kernler v. Marten Transport Ltd., UC Hearing No. 92-603733 (LIRC Feb. 16, 1993) (discharge based on a positive test result for off-duty use of cocaine was for misconduct where policy's purpose was to provide the employer's workers with a drug-free workplace and to ensure public safety); Trachte v. Madison-Kipp Corp., Hearing No. 92- 005368 (LIRC Feb. 25, 1993) (rule prohibiting off-duty drug use reasonable and served employer's interests where stated purpose was to ensure promotion of a safe and productive workplace); Storts v. Springs Window Fashions Div. Inc., UC Hearing No. 92- 002237 (LIRC June 11, 1993) (discharge based on a positive test result for off-duty use of marijuana was for misconduct where policy's purposes were to prevent lost productivity, theft, damage to company property, absenteeism, and accidents); Shanahan v. LIRC and Brew City Distributors, No. 94-CV-23 (Wis. Cir. Ct. Milwaukee County Dec. 30, 1994) (prohibition against off-duty drug use reasonable given employer's interest in safety and the fact that marijuana affects negatively human coordination and performance); Brandner v. Stone Container Corp., UC Hearing No. 94-604063 (LIRC Mar. 8, 1995) (discharge based on a positive post-accident test result for off-duty drug use was for misconduct where policy's purpose was to provide a safe working environment); Berry v. Goodwill Industries, UC Hearing No. 95- 603155 (LIRC Sep. 22, 1995) (discharge based on positive drug test was for misconduct where policy's stated purpose was to provide a safe workplace); Phillips v. Stoughton Trailers Inc., UC Hearing No. 95-005516 (LIRC Jul. 24, 1996) (discharge for off-duty use of marijuana was for misconduct where policy's purpose was to ensure the health and safety of its workers); and McMillan v. Asplundh Tree Expert Co., UC Hearing No. 96-200284 (LIRC Sep. 4, 1996) (discharge for positive drug test was for misconduct where policy was implemented to protect the health and safety of workers)

Indeed, the commission has been admonished for relieving the employer of its responsibility to show that off-duty conduct is sufficiently connected to a worker's employment to find misconduct. In Nelson v. LIRC and DHL Airways, Inc., No. 91-CV- 181 (Wis. Cir Ct. Calumet County Aug. 13, 1992), the employer had a written policy which provided for discharge for an off-duty violation of driving while under the influence of alcohol or controlled substances. The employe was aware that he could be discharged for a conviction for driving under the influence. The employe was in fact convicted of driving under the influence and was discharged as a result. The commission found misconduct, inferring that the rule was reasonable because the public might adversely view the employer if it would employ drivers with such off-duty violations. The court reversed the commission stating:

" . . there is absolutely no evidence in the record of the hearing which supports this inference. Even if true, this conclusion of the Commission can only be described as conjecture. It is not the job of this Court nor the Commission to supplement the record made before the hearing examiner with evidence that might have been offered. . . .

". . . The employer may well have had valid and compelling reasons for the off-duty work rule in question, which may have included the inference found by the Commission, as well as the uninsurability of hired drivers with OMVWI convictions, but no such evidence or concerns were expressed by [the employer] at the hearing. [The employer] introduced no evidence that it was adversely affected other than the claimed license and federal regulation consequences, both of which concerns were unfounded. As a side note it is not important how the public perceives [the employer's] employment policies in this context as long as its business interests are not adversely affected. Gregory, supra at 138. What the Commission infers from the evidence is nothing more than a conjecture which lacks support from the record, and this Court cannot assume how the employer could or should have created a record which would have supported the Commission's conclusion."

Nelson, at 3-4.

The commission cannot infer a business interest for the employer. While the employer offers a nexus between the regulation of off- duty conduct and its interests in the petition, the commission's review is based on evidence offered at the hearing. The commission's rules provide that review by the commission is on the record of the case including the synopsis or summary of the testimony or other evidence presented at the hearing. See Wis. Admin. Code § LIRC 1.04. The commission cannot consider factual assertions made in the petition for review, or documents submitted with the petition for review, which were not also made or submitted at the hearing. Since the commission's review must therefore be based on the evidence submitted at the hearing which has already been held, the commission will not address or consider the factual assertions made by the employer which are not supported by the record.

The commission also notes that in reviewing the case it did consult with the administrative law judge to obtain her impressions of witness credibility and demeanor. The administrative law judge did not believe that the employe was aware that the employer's policy prohibited off-duty conduct. The administrative law judge further indicated that she found the testimony offered by the employer's witness, Mr. Kaquatosh, to be consistently not credible. This is particularly relevant in determining whether or not the employe was informed upon agreeing to go through counseling that another positive drug test would result in his discharge. The administrative law judge found that he was not so informed. Finally, as noted by the administrative law judge, the employer did not follow the procedures set out in its own policy, yet expected the employe to follow that policy.

For the above reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The majority finds against the employer for two major reasons. They find that the employe did not have knowledge of the employer's rule against off-duty usage of drugs. They also found that the employer did not show that the employer had a reasonable rule which was connected to the employe's employment.

I do not believe that the employe was unaware that the employer had a rule against drug usage. The employer had a policy that was over 100 pages long which was discussed at length during orientation. The employer's policy called for a drug-free workplace. The only way to have a drug-free workplace is to have no drug usage either on or off duty.

The employe testified "I did not know that it was the employer's policy that use of illegal drugs was not tolerated. I knew the employer had some policy in that regard, but I did not have a clear understanding of it, then or now."

The employe was not fired because of a technicality in the program. The employe was not fired for the first positive test. He was told he could enter the Employee Assistance Program but that he would be discharged if he did not enter the EAP. The employer testified that when the employe was given Exhibit 6, he was told that he had to remain drug free or he would be discharged. At this point, the employe certainly knew that his job was in jeopardy. The employe was a college graduate who had been on the Dean's List through college and had a cumulative GPA of 3.5.

Exhibit 18 indicates that the urine specimens were diluted which was caused by either additional water or by consumption of large amounts of fluids prior to giving the sample. This indicates to me that the employe knew that the employer was serious about a drug-free workplace. The employe was trying to beat the system by diluting the sample to obtain a false negative test. The exhibit also shows that the employe tested positive on the first test, negative on the second test, positive on the third test and a lower positive on the fourth test. This means that he used drugs again between the second and third test.

Dr. Coleman reviewed the medications the employe listed on his drug test and reported that "Neither Motrin or Seldane is associated with cannabinoids. No cannabinoid like substances were prescribed for this person from what I can tell." The employe believed that the employer did not follow its drug policy but the policy only called for a medical officer review if the person had a position that was covered by DOT regulations which the employe did not have.

The second major issue that the majority has deals with whether the employer showed that they had a reasonable rule that was connected to his employment. The Flowers Case discussed the difficulty of identifying illegal drug usage. It is not as simple to detect illegal drug usage as alcohol usage. Usage of illegal drugs are a violation of the law so I do not see that employes have a constitutionally protected right to use illegal drugs. The prohibition of illegal drug usage is connected to the work because a rule banning illegal drugs is the easiest way to establish a drug-free work area. The employer's Exhibit 3 indicates "that employes may experience a personal problem that may affect their job performance." The policy continues and indicates that the employer will try to help these employes whether the problem be an addictive problem with illegal drugs or alcohol other emotional problems. If the employe had been fired for alcohol use, then the employer would have needed to justify why it was necessary to ban alcohol use because alcohol is a legal drug.

For these reasons, I would reverse the administrative law judge's decision and deny benefits.

Pamela I. Anderson, Commissioner

cc: 
PROGRAM ATTORNEY WM F KUSSEL JR
MENOMINEE INDIAN TRIBE OF WISCONSIN


[Administrative Law Judge's decision]

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