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

JAMES P MARANO, Employee

ENTERPRISE RENT A CAR INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09601008RC


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 five years as a car porter for the employer, a rental car agency. The employee's last day of work was December 17, 2008 (week 51), when he was discharged.

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.

On December 17, the area rental manager discharged the employee after he refused to submit to a drug and alcohol test on December 16. The employer has a policy that provides that a worker "may also be required to submit to a test following an accident or if the company has reasonable suspicion that he or she may be under the influence of drugs or alcohol." The policy does not specify what the consequences are for refusing to take a test. The employee refused to take the

test because he was not working at the time that the test was requested. He had been sent home earlier in the day, and merely stopped at another branch of the employer to talk to workers there and to use the phone. The employee wanted to use the phone to complain to the area manager about being sent home earlier in the day.

On December 18, 2008, the employer discharged the employee for failing to take an alcohol test.

The employee argued that his discharge was not for misconduct. The commission agrees. The employee stated that it was his impression that a co-worker had complained to the employer about his driving, stating that he had cut off another driver. The employer had no other reason to suspect that the employee had been drinking, and in fact, at the hearing said very little about the incident that caused the employer to suspect he had been drinking. The human resources coordinator said that the branch manager asked the employee if he was drunk that morning because of a situation "at the office." The employee had originally been sent home by the employer, and had not been instructed to take an alcohol test. If his condition was such that the employer suspected he had been drinking it could have requested that the employee take an alcohol test at that time, rather than simply sending him home. It was not until two hours later, when the employee went to a different office to use the telephone, that the employer decided to give the employee an alcohol test. A comment that the employee cut off another driver, without the testimony of the individual who made this comment to provide detail that would establish fault on the part of the employee is not reasonable suspicion. The employer also failed to present any other evidence to support a conclusion that it had a reasonable suspicion that the employee had been drinking. Further, the policy did not indicate that the employee could be discharged for refusing to take the test. While the employer did mention that it might discharge him, the employee did not take these statements seriously because he considered himself to have a very close relationship with the employer. Thus, while the employer was dissatisfied with the employee's refusal to take an alcohol test, his actions did not amount to such a willful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

The commission therefore finds that in week 51 of 2008, the employee was discharged but that his discharge was not for misconduct within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 51 of 2008, if otherwise qualified.

Dated and mailed June 19, 2009
maranja . urr : 145 : 6  MC 652.2  MC 652.1

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing prior to reversing his decision. The ALJ found the employer's witnesses to be credible and had the sense that the employer liked the employee and bent over backwards to help him. The commission does not necessarily disagree with the ALJ's credibility determination in this regard. However, the commission concludes that the employer did not establish that it had reasonable suspicion for testing the employee, in particular, two hours or so after he had stopped working.

 


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