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

PHILIP A TAYLOR, Employee

SEARS CARPET & UPHOLSTERY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07600270MW


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 seven months as a full-time carpet cleaner for the employer, a carpet and upholstery cleaning business. His last day of work was February 24, 2006 (week 8), when he was discharged.

The employer has a written policy outlining its Zero Tolerance Policy with regard to illegal drugs. Part of the policy calls for a worker to comply with the demand that he or she take a drug test. Failure to comply with an ordered drug test is grounds for discharge. While the policy sets forth specific situations for testing, it does not call for "reasonable suspicion testing." The employee was aware of the policy.

At the end of the business day on February 24, 2006 (week 8), the employer's owner was cleaning out one of the carpet cleaning vans when she found a marijuana pipe. The pipe had not been in the van in the morning when the owner checked the van out for the day. The van had been used for work that day by a team of two carpet cleaners, one of whom was the employee.

The employer's human resources manager called the employee at home that evening, informed him that drug paraphernalia had been found in the van, and told him that he needed to come in to the office that evening and take a drug test. The employee was on his way to a hospital to visit his mother-in-law and indicated that he was unable to take the test that evening but would be able to take the test the next day, February 25, 2006 (week 8). The employer's human resources manager notified the employee that he was discharged effective immediately.

Section 108.04(5) of the Wisconsin Statutes denies unemployment insurance benefits to a worker who is discharged for misconduct connected with the employment. Thus, the issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

Misconduct connected with employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941).

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. Boynton at 260.

Although the owner alleged that the employee refused to take a drug test until March 1, 2006, this allegation was based upon her conversations with the human resources manager who did not appear as a witness for the hearing. The employee presented undisputed firsthand testimony that he offered to report to work the next day for the drug test. Under the circumstances, the commission finds that his offer to report the next day for the drug test was not unreasonable and was not a sufficient violation of the employer's drug testing policy to constitute misconduct connected with the employment.

The commission therefore finds that in week 8 of 2006, the employee was discharged but not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 8 of 2006, if otherwise qualified. Departmental records reflect that on January 11, 2007, a determination involving the employee and another employing unit became final; that determination found that, as of week 49 of 2006, the calendar week ending December 9, 2006, the employee had been discharged for misconduct connected with his employment and he was ineligible for benefits until seven weeks elapsed from the week of the discharge and until he earned subsequent covered wages totaling $3,696.00.

Dated and mailed May 10, 2007
tayloph . urr : 150 : 1 MC 652.2

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge prior to reversing his decision in this matter. The reversal is based upon the undisputed firsthand evidence in the record and the commission's legal conclusion that the employee's unwillingness to report to work that evening for a drug test was not misconduct in light of his offer to take the drug test immediately the next day.


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uploaded 2007/05/15