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

TASHA N HIGGINS, Employee

EVERGREEN MANOR INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07004555MD


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 January 25, 2008
higgita . usd : 150 : 2   MC 651.2

 /s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner



MEMORANDUM OPINION

The employer's president and owner petitioned the appeal tribunal decision arguing that the employee's discharge was for misconduct connected with her employment, offering additional documents as exhibits and asking for a new administrative law judge as part of the review process. However, the commission's rules provide, at Wis. Admin. Code § LIRC 1.04, that review by the commission is on the record of the case including the synopsis or summary of the testimony or other evidence presented at the hearing. The law requires that the commission's review be based solely on the testimony and documents presented at the hearing before the administrative law judge. Additionally, while the commission does have the discretion to order the taking of additional evidence in matters before it, that authority is exercised only in a few exceptional circumstances. Here, there was adequate notice of the fact that the hearing would be the parties' only opportunity to present evidence. There is no credible and convincing evidence that this opportunity was improperly limited at the hearing, or that a party has discovered material noncumulative evidence since the hearing which they could not have known of before the hearing. Finally, the petitioner has not advanced any other compelling reason to grant a new hearing. Therefore, further hearing will not be granted and the commission cannot consider and will not address factual assertions made in the petition for review, or documents submitted with the petition for review, which were not also made or submitted at the hearing.

The employee worked eight and one-half months as a resident caregiver for the employer, a community-based residential facility. The employee was discharged after testing positive for marijuana on a random drug test. The employer did not argue that the employee was impaired at work and, on the day the employee was required to take the drug test, she drove herself to the facility in the employer's vehicle and returned to work.

Repeatedly, the commission has held that in order to deny benefits for off-duty illegal drug use, based upon a positive drug test, the employee must knowingly violate a written rule prohibiting both on-duty and off-duty use of illegal drugs and spelling out the consequences of a positive test result. Claudette v. Burns International Security Services Corp., UI Dec. Hearing No. 03605195MW (LIRC February 27, 2004)(citing Ahmad R. Yarbrough v. Auer Steel & Heating Supply, UI Dec. Hearing No. 03603863MW (LIRC Nov. 19, 2003)).

In this case, the employer's Drug and Alcohol Policy is found in two different portions of its "Hiring Policy,"

(1) on page 2, under the heading, "ALCOHOL AND DRUG USE," the policy provides:

All employees must consent to random drug and alcohol testing.

Alcohol and drug use prior to or during working hours will be grounds for immediate termination of employment.

(2) while on page 11, "Level 2, employee misconduct" includes, "Alcohol or drug use prior to, or during work hours" with the disciplinary action to be taken explained as follows:

Level 2, employees shall receive 1 written warning for misconduct. After 1 warning notice and 1 repeat offence of any Level 2 misconduct, the employee may be suspended or terminated at the discretion of the administrative staff.

Despite the petition claims to the contrary, the commission does not find that the employer's policy language of "prior to" put the employee on notice "off duty" use of illegal drugs was prohibited. The employer could have easily used the language prohibiting use at "any time," which was found to be satisfactory policy language prohibiting "off duty" use in Luna v. Kerry Inc., UI Dec. Hearing No. 05608257RC (LIRC March 15, 2006), or the language that the policy would be violated by "any positive test," which was also found to be satisfactory notice in Smith v. Laidlaw Transit Services Inc., UI Dec. Hearing No. 07603870MW (LIRC October 12, 2007).

In addition to the actual prohibition language, the consequences of a positive result are also unclear under the policy language; the actual disciplinary section references repeat offenses and this was the first and only apparent Level 2 violation. The earlier written discipline, dated April 2, 2007, was for alleged rudeness/lack of respect towards management and for failing to perform cleaning duties; it does not identify itself as a Level 2 discipline.

For these reasons, the commission affirms the appeal tribunal decision as written.



[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2008/02/04