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

JEREMY J BERG, Employee

WESTAFF (USA) INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04202723EC


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 employee is eligible for benefits as of week 50 of 2003, if he is otherwise qualified.

Dated and mailed April 28, 2005
bergje . usd : 178 : 1   MC 651.2

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

In its petition for commission review, the employer argues that the employee admitted using illegal drugs and therefore his discharge must amount to misconduct.

If an employer wishes to establish misconduct, it is not sufficient to simply show that an employee has broken a state or federal law or local ordinance. It must show that the employee's off duty conduct is connected to his employment. This is accomplished by clear rules alerting individuals that certain private pursuits conducted during their free time will place their employment in jeopardy. In this case, the employer seeks to restrict the employee's off duty conduct. A positive drug test alone does not establish impairment at work.

The ALJ correctly articulates the department's policy on employer rules which seek to regulate off duty conduct. This policy was adopted by the commission in Koss v. Menominee Indian Tribe UI Dec. Hearing No 97400031 (LIRC Apr. 10, 1998). In that case, the commission stated that in order to deny benefits for off-duty drug use based on a positive test the employee must knowingly violate a reasonable employer rule prohibiting off duty use of illegal drugs. The most common way employer's draft rules forbidding off duty use of drugs is to provide for discharge in the event of a positive test.

This employer's rule does not address off duty conduct explicitly and does not spell out the consequences of a positive test. The commission generally allows benefits where a drug policy does not explicitly provide for discharge in the event of a positive test and the rule limits itself to on the job use or impairment. Hawthorne v. Elder Care Line Inc, UI Hearing No. 98604815MW (LIRC Oct. 15, 1998); Brown v. Hondo Inc, UI Dec. Hearing No. 99602014RC (LIRC Jul 14, 1999); Flagg v. Olsten Health Services (Staffing) Inc, UI Dec. Hearing No. 99602942MW (LIRC Aug 31, 1999); Coleman v. U Line Corp UI Dec. Hearing No. 03602548MW (LIRC Oct 7, 2003).

In a nearly identical case, the commission stated "[t]he employer's policy did not specifically put the employee on notice that a positive test result would end his employment. Where the employer is attempting to regulate off-duty conduct, and the employer does not establish that the employee's job performance was actually impaired by such off-duty conduct, the employer is required to make known to each and every employee the conduct that will result in a discharge. Clearly, the employer has an interest in ensuring that workers do not operate a forklift or otherwise engage in work activity under the influence of an illegal substance. However, there is no evidence in this case that the employee was under the influence of any illegal substance while at work." Alexander v. Unified Solutions Inc, UI Dec. Hearing No. 03600003RC (LIRC July 10, 2003).

Consistent with prior cases, the commission affirms the appeal tribunal decision. The employer's rule only prohibited on-duty drug use or impairment. If the employer wishes it to cover cases like the one at issue here, it will need to place its employees on notice of that fact and amend its drug policy.

cc:
Westaff, Inc. (Balsam Lake, Wisconsin)
Mark Kimball



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