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

YOLON R PERRY, Employee

CORNWELL PERSONNEL ASSOCIATES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04608349MW


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, except that it makes the following modifications:

1. The second and third sentences of the fourth paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section are deleted and the following substituted in order to correct an error:

The employee was required to pass a hand dexterity test and a drug screen. The employee passed the dexterity test but tested positive on the drug screen.

2. The fifth paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section is deleted and the following substituted in order to more accurately reflect the commission's decision rationale:

The employee failed to receive a bona fide offer of work from the employer, and this failure was not the result of any intentional conduct on the part of the employee.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 31 of 2004, if otherwise qualified.

Dated and mailed May 12, 2005
perryyo . umd : 115 : 1  MC 651.3

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The employer is a temporary employment agency. Prior to the events at issue here, the employee's last assignment with the employer ended on June 25, 2004. The record does not establish that the employee was offered credible assurance at that time that work would be resumed at an ascertainable time in the near future. As a result, the record supports a conclusion that the employment relationship did not continue after June 25, 2004. See, e.g., Jones v. Seek, Inc., UI Hearing No. 99601034MW (LIRC July 6, 1999) (a temporary help employment relationship continues when there is credible assurance that work will be resumed at an ascertainable time in the not too distant future); Smith v. Cornwell Personnel Associates Ltd., UI Hearing No. 03608179MW (LIRC May 27, 2004) (end of assignment initiated by employer and, in absence of offer of new assignment or credible assurance that offer would soon be forthcoming, employment relationship ended and separation a discharge).

The employee admits that she used illegal drugs the weekend of July 17 and 18, 2004.

On July 20, 2004, the employer contacted the employee to determine her interest in an assignment to start on the second shift the next day with their client Sunlite Plastics. The employee was interested in the assignment and reported to the employer's office on July 21, 2004. At that time, she learned that the assignment required that she pass a dexterity test and a drug screen. The employee passed the dexterity test. The employee was administered a drug screen, and does not dispute that she did not pass it due to her drug use the previous weekend. The assignment was not offered to the employee as a result.

Since the employer did not finalize its offer of work to the employee, the remaining question is whether the employee blocked the job offer by using illegal drugs the weekend of July 17 and 18, 2004. Unlike the situation in Krempp v. LIRC and Albany Chicago Co., Case No. 02-CV-000877 (Wis. Cir. Ct. Kenosha Co., Oct. 8, 2002), in which the court affirmed the commission's decision that the employee had blocked a recall offer, the employee here did not engage in the use of illegal drugs after she became aware that the offer of work was contingent upon a clean drug screen. In Krempp, after learning that he would undergo a drug/alcohol test the next day, and that a negative test was required before he would be offered recall by his former employer, the employee drank significant amounts of alcohol until a few hours before reporting to take the test. The court and the commission concluded that, because this conduct on the part of the employee was intentional, i.e., he consumed alcohol after being placed on notice that a negative drug/alcohol test was required for recall, the employee had blocked his former employer's offer of recall. That intentional conduct is not present here, i.e., at the time the employee used the illegal drugs which produced the positive test result, she had no reason to believe that the employer would be making an offer of recall to her within the next few days, or, in fact, would be making such an offer at all.

The employer argues that, as a condition of the employee's employment, as stated in her contract of hire and in the employer's drug/alcohol policy, the employee "agreed to stay drug free the whole time she was employed or offered work." However, by its terms, the language of the employer's standard contract of hire and its drug/alcohol policy, (1)  applies to employees. As concluded above, the employment relationship between the employee and the employer ended in June of 2004, and any agreements entered into as a part of that relationship had no effect thereafter as a result. An employee cannot be held to the terms of an employment contract, or to the requirements of an employer's work rules, after the employment relationship ends.



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Footnotes:

(1)( Back ) These documents are not a part of the hearing record, but were attached to the employer's petition for commission review. The employer takes issue with their exclusion from the hearing record. The synopsis does not indicate whether they were ever offered as hearing exhibits by the employer. Moreover, even if they were, given their application only to employees of the employer, and the fact that, during the time period relevant to the matters at issue, the claimant was not an employee of the employer, their exclusion would not constitute error.

 


uploaded 2005/05/16