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

JAIME L LUNA, Employee

KERRY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05608257RC


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 fifteen months for a seasoning business. He was discharged on October 4, 2005 (week 41), after he tested positive for marijuana following a post-accident drug test.

The employer has a written rule which requires post accident drug testing when the employee needs medical attention. Its drug policy states: "Employees are prohibited from the use, sale, dispensing, distribution, possession, or manufacture of illegal drugs and narcotics at any time." [emphasis added] It further provides that an employee violating the policy is subject to discharge. The employee was aware of this policy and signed an acknowledgment of it. Following a workplace accident, the employee was sent for a drug test. He tested positive for marijuana. The employee admitted using marijuana in the week before the test. He was discharged for violation of the employer's drug policy.

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

In Koss v. Menonomee Indian Tribe, UI Hearing No. 97-400031 (LIRC April 10, 1998), the commission held 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.

The employee was discharged for violation of the employer's known and reasonable drug policy. This policy clearly states off duty use is prohibited. The employee testified that he was aware of the policy and its consequences. His conduct evinced a willful and substantial disregard of the standards of behavior that the employer had a right to expect, and therefore constitutes misconduct.

The commission therefore finds that in week 41 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 total amount of $4,592 for weeks 41 through 44, and 48 through 53 of 2005, and weeks 1 through 9 of 2006; 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 waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), be cause the over payment resulted from the fault of the employee as provided in Wis. Stat. § 108.04 (13)(f), and the overpayment also 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 41 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. The employee is required to repay $4,592 to the Unemployment Reserve Fund.

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 15, 2006
lunajai . urr : 178 : 1   MC 651.2

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding witness credibility and demeanor. The commission has reversed the appeal tribunal because it reaches a different legal conclusion when applying the law to the undisputed 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.

 

ROBERT GLASER, Commissioner, (dissenting):

I respectfully dissent from the majority finding of misconduct. While the employer's drug policy refers to the use of drugs at any time and of possible discharge, it also refers to reporting to work "...under the influence of illegal drugs." The employer testified that it had no reason to believe that the employee was impaired and only tested because the employee slipped and fell. The employer also testified that not all employees who test positive are discharged. I find it offensive that any employee who is injured at work is subjected to the further indignity of a drug test merely because he has been injured. The facts in this case do not warrant a finding of misconduct and I would affirm the ALJ's finding.

/s/ Robert Glaser, Commissioner



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