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

TIMOTHY J DOWLING, Employee

WALGREEN CO ILLINOIS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05005192MD


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 four months as an order picker for a warehouse/distribution center. His last day work was August 8, 2005 (week 33). He was discharged the following day, after he tested positive for marijuana.

The employer has a written rule which provides for post accident drug testing and also provides for discharge in the event of a positive test. The employee was aware of the employer's rule and signed an acknowledgement of the policy. A certified test result shows that the employee tested positive for marijuana.

The first issue is whether the employee was discharged for misconduct connected with his employment.

The commission has long held that an employer policy that provides for discharge upon 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 was discharged for violation of the employer's known and reasonable drug policy. His conduct evinced a willful and substantial disregard of the standards of behavior that the employer had a right to expect.

The next issue is whether recovery of overpaid benefits may be waived.

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.

In Freddie Washington v. Roundys Inc., UI Dec. Hearing No. 97602900MW (LIRC November 14, 1997), and Stushek v. Graphic Packaging Corp, U I Hearing No. 02402158AP (LIRC Apr. 10, 2003): the commission stated:

"The administrative law judge, in finding the discharge not to have been for misconduct, reasoned that the employer's work rules do not specifically prohibit off-duty use of controlled substances. In so reasoning, however, the administrative law judge failed to apply the specific rule to the effect that a positive drug test would result in the immediate discharge of the employee in question. Pursuant to commission precedent, this was error by the administrative law judge warranting waiver of overpayment to the employee."

The commission finds that the ALJ misapplied the law in this instance and therefore waiver is appropriate.

The commission therefore finds that in week 33 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 $292 for week 45 of 2005; for which he 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), he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that due to department error and not due to any action by the employee, he was paid benefits in the amount of $292, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1) but that recovery of the benefits paid shall be waived, within the meaning of Wis. Stat. § 108.22(8)(c).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 33 of 2005, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. There is no overpayment as a result of this decision.

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 other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed March 3, 2006
dowliti . urr : 178 : 1 MC 651.2  BR 335.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ concerning the credibility of the witnesses. It reverses as a matter of law. The ALJ relied on an old department policy which required an employer rule contain an explicit prohibition against off duty drug use in order to find misconduct based on a positive test. The commission has long held otherwise.

cc:
Walgreens Distribution Center (Windsor, Wisconsin)
David Bunker


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