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

CHRISTOPHER J KUECKER, Employee

CORPORATE SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07003161JV


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a temporary placement agency, for about ten months. His last day of work was April 6, 2007 (week 14). He was discharged on or about April 13, 2007 (week 16).

The employer has a written drug testing policy, which specifies that employees may be required, without notice, to submit a urine, breath or blood specimen for drug testing. The policy indicates that a positive test, without evidence of an acceptable medical prescription, will result in immediate dismissal. The employee received a copy of the policy.

The employee's most recent assignment was as a bailer in a recycling facility. That assignment ended at the behest of the client, and the employee asked the employer whether it had anything else for him. The employer stated it would place him in another assignment which involved operating a "CNC machine," but explained that the client company required a math test and a drug screen.

The employee told the employer he was not good on drug tests without drinking a lot of water. The employer gave the employee a glass of water and a bottle of drinking water, which he drank. The employee stated it could take all day for him to urinate into the test cup, and the employer responded that it did not need much to complete the test and asked him to try. The employee went into the bathroom and returned several minutes later stating he could not go. This occurred shortly after noon.

The employer told the employee it would retest him at 2:00 p.m. and instructed him to drink as much liquid as possible before he came back. The employer also told him that if he did not return by 2:00 p.m. to submit a sample it would be considered an automatic failure of the drug test. The employee returned at 1:45 p.m. carrying a large beverage cup. By 3:31 p.m. he still had not produced a urine sample, and asked whether he could have a different job which did not involve a CNC machine. The employer stated it did not have anything else. The employee then asked if the test could be rescheduled for a different day, but the employer stated it could not. The employee left the office.

On or about April 13, 2007 (week 16), the employee contacted the employer for another assignment, but was notified that he was not eligible for further placements because he failed to submit to a drug test, which the employer considered tantamount to failing the test.

The issue to be decided is whether the employee's discharge was due to misconduct connected with her 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 commission is satisfied that the employer established misconduct. The employer demonstrated that it has a written policy permitting drug testing without notice, of which the employee was aware. Pursuant to the request of a client, the employer asked the employee to submit a urine sample for testing and put the employee on notice of the consequences for failing to submit to the drug test. Although the employee was given two opportunities to submit a urine sample, during which he was permitted to drink copious amounts of water over a three-hour period of time, he did not do so. The employee did not appear at the hearing to offer any explanation for this failure, and the commission sees no reason to conclude that his actions were other than a deliberate refusal to submit to a drug test.

The commission therefore finds that in week 14 of 2007, the employee was discharged 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 ineligible for benefits beginning in week 16 of 2007 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 monetary computation dated June 21, 2007, is set aside. There is no overpayment as a result of this decision. (1)

Dated and mailed November 8, 2007
kueckch . urr : 164 : 8 MC 652.2

/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 about witness credibility and demeanor. The commission's reversal is not based upon a differing assessment of witness credibility.

 

cc: Corporate Services Inc. - Janesville, WI



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Footnotes:

(1)( Back ) Because the employee was not paid any benefits, the commission did not address the issue of whether benefits were erroneously paid as a result of the employer's failure to provide information during the department's fact-finding investigation, pursuant to Wis. Stat. § 108.04(13)(c) and (g).

 


uploaded 2007/11/15