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

TIMOTHY K LAKE, Employee

N & M TRANSFER CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07402477AP


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for thirteen years, as a truck driver for the employer, a goods transport business. He was discharged on September 27, 2007 (week 39).

The employer has a drug policy, which the employee signed, which provides for random testing. The policy prohibits "possession, selling, being under the influence of, or use of an intoxicating illegal drug on Company property, or use of such substances in a manner which affects work performance." It also provides for discharge in the event of a positive test. The employee understood the employer's policy to be a "zero tolerance" policy.

The employee was chosen at random on September 20, 2007, to submit a urine sample. Certified copies of the drug test result show that the employee's sample was positive for marijuana. The employee admitted using marijuana. On September 27, 2007, the employer notified him that he was discharged for violation of the employer's drug policy.

The issue to be decided is whether the employee's discharge was for misconduct connected with his employment.

The commission has long held that an employer's policy that provides for discharge after a positive drug test result is effectively a policy that prohibits off-duty use. Terry Armstrong v. Emmpak Foods, Inc. UI Dec. Hearing No. 01605775MW (LIRC November 29, 2001).

The employee does not deny drug use or argue that the test result is inaccurate. He was aware that he would be discharged if he tested positive for illegal drugs. The commission finds that the employee's off-duty use of an illegal substance, which resulted in a positive drug test, constituted an intentional and substantial disregard of the employer's interests.

The commission therefore finds that in week 39 of 2007, the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $5,325; for which the employee was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1), and pursuant to Wis. Stat. § 108.22(8)(a), the employee is required to repay $5,325 to the Unemployment Reserve Fund.

Wisconsin Stat. § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION


The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 39 of 2007, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay $5,325 to the Unemployment Reserve Fund.

Dated and mailed March 20, 2008
laketim . urr : 178 : 1 MC 651.2  MC 652.3

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ prior to deciding to reverse. The commission's decision is not based on any differing assessment of witness credibility. Instead the commission reaches a different legal conclusion when applying the law to the facts.

The ALJ found that the employer's policy only related to on-duty conduct and forbade being under the influence. However, on page 2 of exhibit one, the policy explicitly provides that the employee will be discharged for a positive test. The commission has long held that this formula amounts to a prohibition of off-duty conduct. The employee acknowledges this when he testified that the employer had a zero tolerance policy.

The ALJ found that the validity of the test result was undermined by the fact that the lab found that the employee's specimen was diluted. Neither the ALJ nor the commission has the expertise to evaluate whether the dilution made the result unreliable. The lab certified a positive result and the commission accepts this as accurate. Moreover, the employee admitted the conduct. In addition, the hearsay evidence concerning the chain of custody is rebutted by the certified medical form which indicates that proper chain of custody was maintained at the lab. Since this is the certified report, it is the best evidence of what occurred.

 

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.C. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

 

cc: Attorney Gregory B. Gill, Jr.


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