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

WADE J LYONS, Employee

MENOMINEE CASINO-BINGO-HOTEL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05400675AP


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 five years, most recently as a third-shift lead housekeeper, for a hotel and casino. He was discharged on January 24, 2005, for testing positive for cocaine (week 5).

The employer has a drug policy, which the employee signed, which provides for random testing. The policy states that employees must remain drug free while employed. It also provides for discharge in the event of a positive test. Although the policy indicates that confirmatory testing is at management's discretion, a GS/MS confirmatory test was performed on the employee's sample according to the employer's drug forms. Certified copies of the drug test result were provided by the employer and show that the employee's sample was positive for cocaine.

The employee testified that he was aware that a positive test would result in his discharge, but was unaware that drug metabolites would remain in his system for any length of time.

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

The commission has long held that an employer's policy that provides for discharge after a positive drug test result is effectively a policy that prohibits off-duty use. Terry Armstrong v. Emmpak Foods, Inc. UI Dec. Hearing No. 01605775MW (LIRC November 29, 2001).

The employee does not deny drug use or insist that the test result is inaccurate. The employee was aware that he would be discharged if he tested positive for illegal drugs. The commission finds that the employee's off-duty use of an illegal substance, which resulted in a positive drug test, constituted an intentional and substantial disregard of the employer's interests.

The commission therefore finds that in week 5 of 2005, 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 the amount of $2,380 for weeks 6 through 15 of 2005; of which $185 is included in a decision dated April 28, 2005, for which the employee was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1), and pursuant to Wis. Stat. § 108.22(8)(a). As a result of this decision, the employee is required to repay $2,195 to the Unemployment Reserve Fund.

Wisconsin Stat. § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

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 5 of 2005, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay $2,195 to the Unemployment Reserve Fund.

The initial benefit computation (UCB-700), issued on February 7, 2005, 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 August 10, 2005
lyonswa . urr : 178 : 4   MC 651.2

/s/ James T. Flynn, Chairman

David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not consult with the ALJ prior to deciding to reverse. The commission's decision is not based on a different legal conclusion any differing assessment of witness credibility. Instead the commission reaches a different legal conclusion when applying the law to the facts.

 

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other 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 over payment.

 


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