ROBERT J WILSON, Employee

TRAMONT CORP, Employer

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:

The employee worked for eight months as a welder for the employer, a steel manufacturer. His last day of work was June 21, 2007 (week 25). His date of discharge was June 22, 2007 (week 25).

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.

The employer had a written policy providing for the discharge of any employee testing positive for the presence of alcohol while on the job. A breath test producing a result of .04 percent or higher was considered a positive result. The employee was aware of this policy.

After having punched in on June 21, 2007 (week 25), the employee engaged in a conversation with the employer's human resources specialist. She believed she smelled alcohol on the employee's breath and reported it to her supervisor. The employee was called to the front office and ordered to provide a breath test at the employer's designated clinic. He was driven to the clinic and complied with the testing procedures. There was no evidence that the employee was impaired in anyway such as slurred speech, glassy eyes, difficulty walking, standing or other uncoordinated action etc.

The first test, administered one hour and 18 minutes after the employee punched in to work registered a .059 percent. A second test, administered 17 minutes later, registered a .061 percent. Based on the test results the employee was sent home for the remainder of his shift. He was paid for his shift even though he never worked. The employee was discharged the next day, June 22, 2007 (week 25), for violating the employer's policy regarding drug and alcohol usage.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance 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 employee, 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 employee'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 has long recognized the validity of employer policies designed to restrict the influence of drugs and/or alcohol in the workplace. Most such policies at a minimum prohibit employees from being under the influence of or impaired by alcohol or drugs at the workplace. These policies often include other prohibitions against using or possessing any alcohol or drugs on the job or on the employer's premises.

Because usage of unprescribed drugs is unlawful, and in recognition that detecting levels of impairment due to drug usage can be difficult, the commission has validated employer policies that discipline employees who are found to have tested positive for the presence of illegal drugs. However, because alcohol consumption is not unlawful the commission has required proof of more than the mere presence of any alcohol in an employee's system. This presents a common difficulty for employers in trying to determine when an employee who has consumed alcohol is in fact impaired. At a minimum we presume that an employee whose blood alcohol content (BAC) is .08% or above is impaired. We do so because that is the only level of blood alcohol content that is recognized in state law as presumptively indicative of alcohol impairment. The commission has never reviewed a case with a hearing record that included expert scientific testimony establishing a lesser standard. We are aware that more stringent standards exist at the federal level for airline pilots or interstate truck drivers for example. However, those standards are enforced federally and apply to qualification to maintain a license for certain activities. They are not invoked for the purpose of proving impairment for unemployment compensation purposes at the state level.

Thus, the commission is often faced with the dilemma of addressing misconduct allegations where an employee has tested positive for blood alcohol content but at a level below the statutory presumption of impairment of .08% /BAC. Frequently in such cases the commission has been able to determine employee misconduct because the employer presented other evidence of impairment such as slurred speech, difficulty walking, glassy eyes, uncharacteristic conduct, etc. Occasionally, the commission has found impairment where it has been shown that an employee tested at a level below .08% BAC after his workday began but must have equaled or exceeded such limit when he began his workday because blood alcohol content decreases at the rate of 15% per hour.

In the case before us, the employer had a reasonable suspicion that the employee might be impaired due to alcohol because he smelled of alcohol. The employer's insistence that the employee be tested for the alcohol impairment was reasonable. However, a blood alcohol content test establishes the presence of alcohol as a percentage of total blood volume. That by itself does not establish impairment. We can presume impairment if the BAC level is .08% or greater because the legislature has specifically addressed that question in the area of the operation of an automobile. In effect the legislature has established .08 as the standard to use in presuming impairment by blood alcohol content. The commission on the other hand is not capable of making such a presumption beyond that authorized by the legislature.

Thus the commission may not use a blood alcohol content level of less than .08 percent as conclusive evidence of impairment.

The commission can find impairment by relying upon other evidence of impairment as presented by any witnesses at the hearing before the ALJ. In this case there was no other evidence of impairment presented. We are thus required to find that the employee is eligible for benefits.

The commission therefore finds that in week 25 of 2007, the employee was discharged but that his discharge was not for misconduct connected with his work for the employer, within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 25 of 2007, if otherwise qualified.

Dated and mailed February 29, 2008
wilsoro . urr : 145 : 8    MC 651.1  MC 653.1  MC 652.5

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing his decision. The commission did not reverse the ALJ's decision based on a different impression of witness credibility and demeanor but rather because the commission reached a different legal conclusion when it applied the law to the facts found by the ALJ.

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