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

JOHN J SWITON, Employee

MAGNUM PRODUCTS LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05402160OS


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 seven years as an electrical assembler for the employer, a construction equipment manufacturer. His last day of work was on June 28, 2005 (week 27).

Prior to May 23, 2005 the employer's drug and alcohol policy provided that being under the influence of alcohol, drugs or controlled substances on the employer's premises was grounds for discipline including discharge. A refusal to submit to a test is subject to termination of employment. A refusal to submit to a test included open refusal to discontinue the use of illegal drugs when testing indicates the presence of such drugs. The policy was put into place in order to maintain a safe, healthful, and efficient working environment.

The employer was informed that a number of workers, including the employee, were engaged in the use and sale of drugs on employer property. The employer questioned the employee and he admitted that he uses marijuana but not on employer property. Since the employer could not corroborate the sale or use on employer property the employee was not discharged. However, he was required to agree to an immediate drug screen and random testing. On June 24, 2005 the employee agreed.

The first sample that the employee provided was believed to be diluted. Therefore, he was required to submit to another test. On June 23 the medical review officer informed the employer that the second test was positive for marijuana. The employer was not told the amount of marijuana that was detected. On June 23 the employee informed the human resource manager that they were going to have a problem because what he did on his own time was his business and that he was not willing to quit. He was told that if he was tested and that if the levels for marijuana had not declined that he would be terminated.

On June 28, 2005 (week 27) the employee was discharged for his refusal to discontinue the use of illegal substances.

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

A worker's off-duty use of an illegal substance can be the basis for finding misconduct if the policy is designed to insure the safety of an employer's workers, the public, or improve productivity. See e.g., Dale White v. LIRC and Stoughton Trailers, Inc., Dane Co. Cir. Ct., Case No. 90-CV-5006 (1991)(Prohibition against off-duty use of illegal drugs reasonable in light of employer's interests in the safe and efficient operation of its business); Terrance Shanahan v. LIRC and Brew City Distributors, Milwaukee Co. Cir. Ct., Case No. 94-CV-23 (1994) (Prohibition against off-duty drug use reasonable given employer's interest in safety and the fact that marijuana affects negatively human coordination and performance.) The employer's policy was implemented for the health and safety of its workers. In Brown v. Zander's Creamery, (LIRC, 2/1/90), the commission held that a prohibition against off-duty drug use was reasonable because drug use in the work place is a costly and significant problem, impairment may exist without any outward signs detectable by a lay person, and there is no legally protected right to engage in illegal drug use. Citing such factors, the commission concluded that it is "reasonable to impose a 'blanket' prohibition against illegal use of controlled substances by its employees rather than one which only prohibits impairment while on duty." See also Jonathan Fidler v. Stoughton Trailers, (LIRC, 10/28/92) (A rule which prohibits off-duty drug use of controlled substances is reasonable if designed to ensure the health and safety of the employer's workers.); Robert Kernler Jr. v. Marten Transport Ltd., (LIRC, 2/16/93) (Discharge based on a positive test result for off-duty use of cocaine was for misconduct where policy's purpose was to provide the employer's workers with a drug free workplace and to insure public safety.); Jayson Storts v. Springs Window Fashions Div. Inc., (LIRC, 6/11/93) (Discharge based on a positive test result for off-duty use of marijuana was for misconduct where policy's purpose was to prevent lost productivity, theft, damage to company property, absenteeism, and accidents.); Jeffrey Brandner v. Stone Container Corp., (LIRC, 3/8/95) (Discharge based on a positive post-accident test result for off-duty drug use was for misconduct where policy's purpose was to provide a safe working environment.). The employer's policy does not require a discharge upon an initial positive drug test. However, the employer's policy does provide that once a worker tests positive for illegal drugs, open refusal to abstain from such illegal conduct subjects the employee to immediate discharge. The employer's policy was reasonable; the employee's open defiance of that policy was unreasonable. The employer and its workers should not have to be placed at risk due to the employee continued drug use. The employee's refusal to adhere to the employer's reasonable work rule demonstrated an intentional and substantial disregard for standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 27 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 $6,585.00 for weeks 27 through 29 and 32 through 51 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 27 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 $6,585.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on June 29, 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 also 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
switojo . urr : 132 : 1 :  MC 651.1

/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 her impressions of witness credibility and demeanor. The ALJ indicated that she did not have any specific demeanor impressions of the witnesses that led to her decision.

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: Attorney Matthew L. Goldin


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