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

DARLENE MAYS, Employee

E G A PRODUCTS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05605967MW


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 spot welder, for the employer, a manufacturer. Her last day of work was July 25, 2005 (week 31), when she was discharged.

The employer's work rules provide that a work related injury will result in the injured worker undergoing a drug test. The employer's drug policy references the work-related effects of drug use and prohibits the

unlawful manufacture, distribution, dispensation, possession or use of a controlled substance on company premises or while conducting company business off company premises

The policy does not define "use" on the employer's premises. It further indicates that violation will result in disciplinary action, up to and including termination.

After a work related injury, the employee was drug tested and the results were positive for cocaine metabolites. The employer discharged her based upon this positive test. The employer's vice president of operations testified that the test was not given "for cause" and that there was "nothing unusual" in the employee's behavior. He also testified that he decided to terminate the employee, even though the policy did not require immediate termination, because "testing positive for cocaine is very serious" given the employee's job duties.

Following the discharge, the employee filed a claim for unemployment insurance benefits. The employee then petitioned the commission for review of the appeal tribunal misconduct decision, disputing the drug test results and the employer's application of its drug policy.

Section 108.04(5) of the Wisconsin Statutes denies unemployment insurance benefits to a worker who is discharged for misconduct connected with the employment. Thus, the issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

Misconduct connected with employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941).

The employee's drug test was positive for cocaine metabolites. However, the mere presence of those metabolites does not indicate that she was using cocaine at work or in any other way violating the employer's policy. In fact, the employer's vice president of operations testified that the drug test was not "for cause" and there was "nothing unusual" about the employee's behavior to suggest that she was using cocaine at work or otherwise violating the terms of the policy. Further, while the commission certainly does not condone "off duty" use of illegal drugs, the commission restated its long held policy

that in order to deny benefits for off-duty drug use based on a positive drug test, the employee must knowingly violate a reasonable employer rule prohibiting off-duty use of illegal drugs, and to be reasonable, the employer's rule must prohibit both on-duty and off-duty use of illegal drugs, be known to the employee, be set forth in writing, and spell out the consequences of a positive test result. Yarbrough v. Auer Steel & Heating Supply, UI Dec. Hearing No. 03603863MW (LIRC Nov. 19, 2003) (citing Betters v. Kimberly Public School (LIRC, July 29, 2003); Koss v. Menominee Indian Tribe, (LIRC, April 10, 1998)).

Given the policy's failure to explicitly address off-duty conduct or the consequences of a positive test together with the employer's admission that the employee did not appear to be "under the influence" at work, the employer has failed to establish a sufficient connection between the positive drug test and her employment to establish misconduct. See Berg v. Westaff (USA) Inc., UI Dec. Hearing No. 04202723EC (LIRC April 28, 2005).

The commission therefore finds that in week 31 of 2005, the employee was discharged from her employment but not for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).


DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 31 of 2005 if otherwise qualified.

Dated and mailed November 10, 2005
maysdar . urr : 150 : 8  MC 651.2

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission's reversal is based upon a differing legal conclusion reached when applying the employer's undisputed policy, instead of a differing view of credibility; as such, no credibility conference was conducted.

 

ADDITIONAL NOTE: On November 9, 2005, Jaron Mosier submitted a letter indicating that he was representing the claimant in the above matter and requested a copy of the synopsis, exhibits and a briefing schedule. Yet, as of that date, the commission had already concluded its review of the above matter; the claimant petitioned the matter on September 27, 2005. Consequently, the requests in the letter are denied and the November 9, 2005 letter will be associated with the file.

 

cc:
Attorney Robert M. Mihelich
Representative Jaron Mosier


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uploaded 2005/11/22