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

GREGORY A ROBINSON, Employee

PENTAIR WATER GROUP INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06004319JV


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 the employer, a manufacturer of water pumps, for about four years as a molder. His last day of work was October 9, 2006 (week 41).

The employer has a drug and alcohol policy which provides, in relevant part:

"The use, sale, purchase, manufacture, possession or transfer of an illegal drug or alcohol, or being under the influence of an illegal drug or alcohol, during working time or any time while on Sta-Rite property or in a Sta-Rite vehicle on company business, is absolutely prohibited."

The policy also contains the following provision:

"Employees will also be required to take a drug test if they are directly responsible for contributing to significant damage to company property."

On October 9, 2006, the employee was involved in an accident at the workplace. The employee was attempting to back a forklift out of a space with limited clearance and struck an overhead pipe.

The employee was sent for a post-accident drug screen which came back positive for cocaine metabolites. He was discharged as a result of the positive drug test.

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

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation 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 employe, 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 employe'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' within the meaning of the statute."

The employee was discharged for a positive post-accident drug test. However, there is no evidence to suggest that the employee was under the influence of illegal drugs when the accident took place. The employer's policy does not address off-duty drug use and does not specify that a positive drug test will result in discharge.

The commission has 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. Yarbrough v. Auer Steel & Heating Supply (LIRC, Nov. 19, 2003), citing Betters v. Kimberly Public School (LIRC, July 29, 2003); Koss v. Menominee Indian Tribe (LIRC, April 10, 1998). The commission generally allows benefits where a drug policy does not explicitly provide for discharge in the event of a positive test and the rule limits itself to on-the-job use or impairment. Berg v. Westaff (USA) Inc. (LIRC, April 28, 2005), citing Hawthorne v. Elder Care Line Inc (LIRC, Oct. 15, 1998); Brown v. Hondo Inc (LIRC, July 14, 1999); Flagg v. Olsten Health Services (Staffing) Inc (LIRC, Aug. 31, 1999); Coleman v. U Line Corp (LIRC, Oct. 7, 2003).

The employer failed to demonstrate that the employee's discharge was pursuant to a policy addressing the employee's off-duty conduct and which put the employee on notice of the consequences of off-duty drug use. Consequently, the employer failed in its burden of establishing that the employee's discharge was for employment-related misconduct.

The commission, therefore, finds that in week 41 of 2006, the employee was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 41 of 2006, provided he is otherwise qualified.

Dated and mailed January 25, 2007
robingr . urr : 164 : 9   MC 651.2  MC 653.1

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge about witness credibility and demeanor. The commission's reversal is not based on witness credibility, but is as a matter of law.

 


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