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

ANDREW J SPINDLER, Employee

PALLET SERVICE CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08202552EC


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 about eight days as a shift supervisor for the employer, a pallet manufacturing business. His last day of work was November 12, 2008 (week 46). He was discharged on November 13, 2008 (week 46).

On the employee's first day of work, November 3, 2008, he provided a urine sample as part of the employer's drug testing policy. The clinic conducting the test made an error which rendered the sample unusable. Accordingly, he was called on to provide a second urine sample on November 5. The employee explained that on November 4, while at a party, he had used marijuana.

The employee was discharged because he received a positive test result for use of marijuana under the employer's pre-employment drug testing procedure. The employer's practice is to conduct pre-employment drug tests on its newly hired workers. The employer's policies provide, under "Procedures for Drug and Alcohol Testing" that "If you fail the test, you will be considered to be in violation of this policy and will be subject to discipline accordingly." On the same page under "Disciplinary Action" the policy states "Violations of this policy may lead to disciplinary action, up to and including immediate termination of employment."

The issue to be decided is whether the employer discharged the employee for misconduct connected with his work for the employer.

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 employee was aware that his employment was contingent on passing a drug test. The policy alerted the employee that he could be discharged for testing positive. The employee admitted using marijuana after he was hired. The employee's conduct demonstrated an intentional and substantial disregard for standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 46 of 2008 the employee was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $2,290.00 for weeks 49 through 52 of 2008 and weeks 1 through 6 of 2009, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived. Wis. 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), departmental 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, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.

Benefits paid prior to the ALJ's decision were not paid as a result of departmental error. The information that the employee used marijuana after he was employed came out at the hearing.

However the ALJ allowed benefits reasoning that the employer's policy was vague in terms of the consequence of a positive drug test. The commission disagrees. The policy stated that a positive drug test was a violation of the policy and that a violation of the policy can result in discharge.

The commission further finds that waiver of benefit recovery for benefits paid for weeks 49 though 52 of 2008 and week 1 of 2009 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 departmental error. See Wis. Stat. § 108.22(8)(c).

The commission further finds that waiver of benefit recovery for benefits paid for weeks 2 through 6 of 2009 in the amount of $1,145.00 is required under Wis. Stat. § 108.22(8)(c), because 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 departmental error. See Wis. Stat. § 108.22(8)(c).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 46 of 2008, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $1,145.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed March 31, 2009
spindan . urr : 132 : 1 : MC 651.2  MC 651.4   BR 335.01

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

 

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The commission's reversal of the ALJ's decision is not based on the credibility of the witnesses.

 

cc: Pallet Service Corp. (Knapp, Wisconsin)


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