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

FRANK BENEGAS, Employee

LIFELINE SERVICES OF FOND DU LAC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04005081FL


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, if otherwise qualified.

Dated and mailed June 30, 2005
benegfr . usd : 178 : 1   MC 652.2

/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 was scheduled along with 17 other employees to take a random drug test. It further argues that the employee was told in person of the requirement on August 27 and the employee agreed to take a test on his own time on August 30 rather than go immediately after work. It provides additional factual assertions regarding these events and the employee's schedule and supporting documents in an attempt to refute the employee's testimony that he was leaving town and could not be tested.

First, the commission is limited by statute to consider only testimony and documents which were entered into evidence at the hearing. Information offered for the first time in the petition which was not subject to cross-examination was not considered by the commission in its deliberations.

There is no dispute that employee did not receive actual notice of the original drug test on August 24. The employer maintains that it frequently called employee at home about this drug test and left messages, but those messages only asked employee to call. They did not detail drug testing expectations or instructions. The employer witness testified that she told the employee about the drug test at work on August 27 and the employee said he would take the test on August 30, because he was going to another job immediately after work. At the hearing, the employee denied agreeing to do this. He never had a test on August 30. The employer issued an ultimatum to take the test on September 3. The employee refused and was discharged.

Although the parties dispute what excuse the employee gave for not accepting the employer's ultimatum, the ALJ found the employee's testimony credible that he was leaving town. The commission accepts this credibility determination. The employer infers from the employee's elusiveness that he refused to take the drug test. The employee maintains that he was willing to do so but was prevented by circumstances. It is a credibility issue whether the employee was willfully avoiding a drug test. The ALJ and the commission are not persuaded that the employee deliberately sought to avoid the drug test.

The employer's drug policy does not provide for discharge for positive test. Nor does it discuss off duty use. Since there is no allegation that the employee was being tested due to a reasonable suspicion, even if he tested positive, it was his day off and there is no allegation that he was impaired at work. The commission does not see how a positive result in such circumstances would violate the express terms of this drug policy.

After careful review of the record and arguments, the commission agrees with the ALJ that the employer's request that the employee take an uncompensated drug test on his day off when he had out of town plans was unreasonable. Therefore, the employee's refusal does not constitute misconduct. If the employer wanted to demonstrate misconduct in this context then it should have required him to test during work hours even if this would require it to provide other staff to do the employee's job while he was doing so. As it was, the employee was expected to do this on his own time. The commission is not persuaded based on this record that the employee was willfully refusing to take a drug test rather than simply unavailable due to other commitments. Therefore, the appeal tribunal decision is affirmed.



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uploaded 2005/07/11