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

CRAIG R OSNESS, Employee

AURORA PHARMACY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04608041MW


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 for the employer, a pharmacy, for a little over two years as a pharmacist. His last day of work was July 28, 2004 (week 31).

The employer has a written policy which states that the employer supports a drug-free workplace in order to ensure high quality patient care and service levels. The employer's policy provides for pre-employment drug testing. The policy prohibits unlawful use or possession of controlled substances during working hours or on the employer's premises and indicates that inappropriate workplace behavior related to such use may result in immediate discharge.

On January 22, 2004, the employee's manager reported to the employer that the employee was exhibiting unusual behavior. The employee was sent for a drug test, which came back positive for marijuana. The employer placed the employee on a last chance agreement which provided, among other things, that he could be sent for unannounced and unscheduled drug testing for a two-year period and that a second violation, as indicated by a positive test result, would result in discipline up to and including discharge.

On July 28, 2004, the employee was sent for drug testing, and tested positive for marijuana metabolites. The employee was discharged the following day.

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

In Boynton Cab v. Neubeck, 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 employe, 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 employe'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' within the meaning of the statute."

The employee was discharged for violating his last chance agreement. While the employer's drug-free workplace policy only specifically prohibits post-hire drug use that results in inappropriate workplace behavior, the employee had engaged in such behavior and was put on a last chance agreement as a result. The last chance agreement provided for drug testing and discharge based upon a positive test result. Consequently, the employee was aware that his off-duty conduct could place his job in jeopardy, notwithstanding the lack of a general work rule to that effect. The employer had a reasonable interest in regulating the employee's off-duty drug use because the employee worked as a pharmacist and the employer was obligated to ensure a high standard of patient care. Under all the circumstances, the commission believes that the employee's actions in violating the last chance agreement evinced a wilful and substantial disregard for the employer's interests.

The commission, therefore, finds that in week 31 of 2004, the employee was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in weeks 32 through 48 of 2004 in the total amount of $5,593, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 31 of 2004 and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $5,593 to the Unemployment Reserve Fund.

The initial benefit computation (UCB-700) issued on August 5, 2004, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

Dated and mailed December 10, 2004
osnescr . urr : 164 : 1  MC 651.5

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission conferred with the administrative law judge about witness demeanor and credibility. The commission's reversal is not based upon a differing assessment of witness credibility, but is as a matter of law.

Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to off set overpayment of U.I. and other special benefit programs that are due to this state, another state, or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.


 

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uploaded 2004/12/13