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

SHEILA MCGEE, Employee

CAMEO CARE CENTER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07600965MD


On October 18, 2006, the Department of Workforce Development issued an initial determination which held that the employee's discharge was not for misconduct connected with her employment. The employer filed a timely request for hearing on the adverse determination, and hearing was held on March 7, 2007 in Madison, Wisconsin before a department administrative law judge. On March 9, 2007, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employer filed a timely petition for commission review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked two years as a licensed practical nurse for the employer, a skilled nursing facility operator. The employer discharged her on September 26, 2006 (week 39), following its receipt of a drug test result for the employee, and the issue is whether the discharge was for misconduct for unemployment insurance purposes. The commission concludes that it was, and so reverses the appeal tribunal decision.

The employee worked third shift. When she reported to work late in the evening on September 16, 2006, she appeared normal. By 3:00 a.m., however, the employee was falling asleep continually, once even while holding a patient's medication in her hand. The employee's eyes were glassy, her speech was garbled, she could not complete a sentence, and she was incoherent and disoriented, even to the point of being unable to write her name. Her supervisor suspended her at this point and, the next day, the employer's human resources manager attempted to contact the employee in order for the employee to undergo a drug screen. The human resources manager was only able to contact the employee the following day, September 19, at which time the employee said she would come in for the drug screen. Around 2:00 p.m., the employee contacted the manager to indicate that she could not come in because she did not have bus fare, but that she would be in the following morning. The employee did report to work the following morning, at which time she was sent for a drug screen. The drug screen was positive for cocaine metabolites (at hearing the employee admitted that she was smoking cocaine every other day); when the employer received a copy of the positive screen, it discharged the employee for having been under the influence of cocaine early in the morning on September 17 and for violation of the Nurse Practice Act.

The employer's work rules prohibit the use, sale, possession, or distribution of controlled substances by employees while at work. They prohibit employees from being at work while under the influence of controlled substances. They also prohibit any use of unlawful controlled substances, however. Further, the employer's work rules prohibit violation of criminal statutes even off duty, by conduct reasonably related to the employee's job duties or responsibilities. Wisconsin Stat. § 441.07(1)(c), finally, part of the Nurse Practice Act, allows suspension of a licensed practical nurse's license for acts which show the nurse to be unfit or incompetent by reason of negligence, abuse of alcohol or other drugs, or mental incompentency.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. The employee's use of cocaine meets this standard. First, it violates the employer's prohibition against its employees' use of any unlawful controlled substances. Second, it violates the rule of the employer prohibiting violation of criminal statutes by conduct reasonably related to one's job duties or responsibilities. This is so because the employee placed her nurse's license at risk by her use of cocaine.

The commission therefore finds that, in week 39 of 2006, the employee was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5). The commission also finds that the employee was paid benefits in the amount of $341.00 per week for each of weeks 39 and 41 - 48 of 2006, and $355.00 per week for each of weeks 11 through 24 of 2007, totaling $8,039.00, for which she was ineligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). The commission finds finally, that partial waiver of benefit recovery is required under Wis. Stat. § 108.22(8)(c), because the overpayment (from benefits received in 2007) was the result of departmental error and did not result from employee fault as provided in Wis. Stat. § 108.04(13)(f). Specifically, it was error for the administrative law judge to have failed to consider the portions of the employer's rules that ground the finding of misconduct reached above. The employee thus is required to repay $3,069.00 to the Unemployment Reserve Fund; recovery of the remaining $4,970.00 of the overpayment is waived.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 39 of 2006, 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. The employee must repay $3,069.00 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 otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed June 29, 2007
mcgeesh . urr : 105 : 1 MC 651.2  MC 699  MC 692.02

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission's reversal was not based on a differing credibility assessment from any made by the administrative law judge. Rather, the commission concludes that the employer's work rules required a finding of misconduct as a matter of law.


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