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

LAURIE K MUELLER, Employee

EXEL LOGISTICS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 5607073R


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 eight years for the employer, most recently as an "export tasker." The employer is involved with the warehousing and distribution of household products. The employee's last day of work was August 17, 2005 (week 34).

The employee's most recent work was as an office worker. However, she had previous experience with the employer as a fork lift driver. On August 12, 2005, the employee agreed to work overtime on August 13 and 14, 2005. When she reported for work on August 13, she was instructed to bring steel toed boots the next day so that she could drive the fork lift. The employee refused and said she feared she might have an accident and fail a drug test. The employee was directed to take a drug test on August 17, 2005. She refused to take the test because she feared she would fail it. She resigned in lieu of termination the same day.

The employer had a written drug testing policy which provided for testing in the event of an accident, significant damage to product, or reasonable suspicion of use on company premises. It also provided for testing when an employee's fitness for duty was in question. Fitness for duty was defined as "any observable behavior that effects an associates ability to safely or productively work." (sic) The employer's rules provided for discharge in the event of a positive drug test or a refusal to submit to a drug test.

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

The employee refused to perform job duties on the grounds that her illicit drug use made it unsafe for her to do so. The employer was justified in testing the employee based on this admission under its fitness for duty criterion. The employee refused to submit to the drug test. The fact that the employee's usual duties were not safety sensitive doesn't excuse her from the policy. The issue arose when she was being assigned safety sensitive duties and the employer had an interest in maintaining a safe work environment.

The employee signed an acknowledgement of the employer's drug testing policy. Her conduct in refusing to submit to a drug test constituted a deliberate and substantial disregard of the standards that the employer had a right to expect and amounted to misconduct connected with her employment.

The commission therefore finds that in week 34 of 2005, the employee was discharged for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $6,933 for weeks 35 through 53 of 2005 and weeks 1 and 2 of 2006; for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), she is required to repay such sum to the Unemployment Reserve Fund.

Wisconsin Statute § 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 34 of 2005, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay the sum of $6,933 to the Unemployment Reserve Fund. The initial Benefit Computation (form UCB-700), issued on August 23, 2005 is set aside. If benefit payments become payable based on other 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 February 8, 2006
muellla . urr : 178 : 1  MC 652.1  MC 652.2

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission does not reverse due to any differing impression concerning witness credibility. It accepts the ALJ's findings but reaches a different legal conclusion when applying the law to those 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.

 

cc: Talx Employer Services (Westerville, Ohio)


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uploaded 2006/02/13