JENNIFER S WATKINS, Employee

THE FRIENDLY VILLAGE, 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 for the employer, a skilled nursing facility, for almost six years as a certified nursing assistant. Her last day of work was July 27, 2004. She was discharged on July 29, 2004 (week 31).

The employer has a drug-free workplace policy which provides for random drug testing. Under the policy, refusal to comply with a request for testing or attempting to falsify test results by tampering, contamination, adulteration, or substitution will result in immediate discharge. The policy does not mandate immediate discharge for a positive test result, but provides for suspension and referral to an employee assistance program.

On July 26, 2004, the employee was sent for a random drug test. After her initial sample was tested the employee was asked to submit a second sample for testing. The employee did so, and the test came back positive for marijuana metabolites. The employee admitted to smoking marijuana as a way to deal with severe headaches. The employer discharged the employee for having tampered with her original sample. The employer contended that the sample was not up to temperature and had, erroneously, tested negative.

The issue to be decided is whether the employee's discharge was due to misconduct connected with her 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 attempting to falsify a drug test result by tampering with her urine sample. However, the employee denied tampering with the specimen, and the employer failed to present competent evidence to establish that the sample was cold or that it tested negative. The only certified drug testing report in the record pertains to the second sample, which tested positive, but for which the employee was not discharged. Where the employer did not demonstrate through competent and persuasive evidence that the lab followed the correct chain of custody procedures in handling the original sample, performing the test analysis, and establishing the results of the drug test, there is no evidence to support a finding of misconduct.

The commission, therefore, finds that in week 31 of 2004, the employee was discharged and not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 31 of 2004, provided she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed December 17, 2004
watkije . urr : 164 : 1 MC 652.3

/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 about witness credibility and demeanor. The commission's reversal is not based upon a differing assessment of witness credibility, but is as a matter of law.

 

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uploaded 2004/12/20