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

ALICE C WALTON, Employee

ALEXIAN VILLAGE OF MILWAUKEE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07604634MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed October 26, 2007
waltoal . usd : 178 : 8  MC 651.1

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the employer argues that it had a zero tolerance alcohol policy and therefore the employee's blood alcohol content of .042 was a violation regardless of whether she was under the influence of alcohol at work.

The employer's policy apparently considers a worker to have "failed" an alcohol test if the presence of alcohol is detected in the worker's system. Thus, an employee is subject to discharge, based on the policy submitted at the hearing, for a blood ethanol level of .001. The employer's policy has the effect of regulating the employee's legal activities during off-duty hours. While an employer does have a right to regulate on-duty conduct, in order for the violation of a work rule relating to off- duty conduct to constitute misconduct, the rule must bear a reasonable relationship to the employer's interests. Gregory v. Anderson, 14 Wis. 2d 130, 137, 109 N.W.2d 675 (1961).

In this case, the employer failed to demonstrate any work-related reason for requiring total abstention of the employee's off-duty use of alcohol. Further, there was no evidence presented by the employer that the employee's ability to do her work was impaired. Steele v. Wal Mart Associates Inc, UI Hearing No. 03002369WU (LIRC Sept. 17, 2003)

cc: UC Management Services - Attn: Larry Smith



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uploaded 2007/10/31