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

LESTER L ELMORE, Employee

MARTEN TRANSPORT LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05003145MD


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 about three years as an over-the-road truck driver for the employer, a transportation business. His last day of work was on March 2, 2005. On March 11, 2005 (week 11), the employer discharged him after receiving results from a random drug test conducted on March 2, 2005, that showed that he tested positive for a cocaine metabolite.

The employer's written drug policies prohibit an employee's illegal drug use. Circumstances include working under the influence of illegal drugs, use in the work place, on duty, or while operating employer owned or leased vehicles or machinery. Such may lead to disciplinary action up to and including discharge, or referral to an approved counseling or rehabilitation program. Among other situations, random drug testing is permitted. Employees who refuse a test are subject to discharge. Where a positive test is confirmed, immediate termination may take place.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' with in the meaning of the statute."

The employer's policy does not specify that it applies to off-duty drug use, but does provide that "where a positive drug test is confirmed, immediate termination may take place." Further, the employee signed an employee acknowledgement form indicating that he received the Federal Motor Carrier Safety Regulations Pocketbook Guide in which he agreed to familiarize himself with the USDOT, Parts 40.382, 383, 387, 390-397. The employee was discharged for violation of the Federal Motor Carrier Safety Regulation 382.215 which provides that:

No driver shall report for duty, remain on duty or perform a safety-sensitive function, if the driver tests positive or has adulterated or substituted a test specimen for controlled substances. No employer having actual knowledge that a driver has tested positive or has adulterated or substituted a test specimen for controlled substances shall permit the driver to perform or to continue to perform safety-sensitive functions.

The employer's policy implements drug testing mandated by federal law. The employee was provided with copies of the Federal Motor Carrier Regulations and signed an agreement to familiarize himself with those provisions that set out that driver may not engage in illegal drug use on or off duty. The policy does state that termination may result from a positive drug test. The employee's conduct in engaging in illegal drug use rendered him unavailable for work for the employer and violated standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 11 of 2005 the employee was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $8,554.00 for weeks 24 through 49 of 2005, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived. Wis. 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), departmental 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, by commission or omission, 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 departmental error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

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 departmental 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 11 of 2005, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $8,554.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on June 9, 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.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed December 21, 2005
elmorle . urr : 132 : 1 :  MC 651.2  MC 651.4

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impression of witness credibility and demeanor. The ALJ indicated that he did not recall anything specific or unique about the demeanor of the employee.

 

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.I. 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.

 

cc: Marten Transport (Mondovi, Wisconsin)


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