RAYMOND D SANDGREN, Employee

BERNARDS NORTHTOWN INC, 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 more than three years as a body shop technician for the employer, an automobile dealership. His last day of work was January 21, 2009 (week 4).

The issue is whether the separation from employment was a quit or a discharge, and whether it occurred under circumstances which would permit the payment of benefits.

As a part of his responsibilities, the employee worked with machinery and chemicals, including certain solvents.

The employee's application for employment (exhibit #1) stated in part:

I also understand and agree that the company reserves the right to require me to submit to a drug or alcohol screening test at any time after employment...

The section of the application in which this language appeared required a separate signature, which the employee provided.

The employer's written personnel policies (exhibit #2) include a substance abuse policy which states as follows, as relevant here:

Bernard's is committed to providing its employees with a safe workplace and an atmosphere which allows them to protect inventory and other assets placed in their care. Bernard's employees should not be subject to any safety threats from fellow workers. You are expected to be in suitable mental and physical condition while at work, allowing you to perform your job effectively and safely.

Whenever use or abuse of any mood altering substances (such as alcohol or other drugs) interferes with a safe workplace, appropriate action must be taken. Bernard's has no desire to intrude into its employees' personal lives. However, both on-the-job and off-the-job involvement with any mood altering substances can have an impact on our workplace and on Bernard's ability to achieve its objectives of safety and security. Therefore, you are expected to report to the workplace with no mood altering substances in your body.

While you may make your own lifestyle choices, Bernard's cannot accept the risk in the workplace which substance use or abuse may create. The possession, sale or use of mood altering substances at the workplace or coming to work under the influence of such substances shall be a violation of safe work practices and will subject you to disciplinary action, including possible dismissal. Bernard's reserves the right, as a condition of continued employment, to require assessment and treatment if recommended, including taking an unpaid leave of absence if necessary.

Prior to January 21, 2009, it was reported to the body shop manager that the employee had been observed smoking marijuana in his truck which was parked at the time in the employer's lot. On January 21, it was reported to the body shop manager that the employee smelled of marijuana.

As a result, the employer met with the employee and directed that he undergo a drug test. The employee indicated that he had been using drugs for a long time and would fail the test. The employer told the employee he had a choice to undergo the test or be terminated, and the employee decided not to undergo the test. The employment relationship ended as a result.

The employee testified that he was aware that the employer could require him to undergo a drug test at any time and that "it went without saying" that, if he refused the test, or failed the test, he would be discharged.

The employee chose to end his employment rather than submit to the drug test and the separation as a result was a quit. See, Moon v. Qualitemps, Inc., UI Hearing No. 03008103MD (LIRC June 4, 2004); Girard v. Rite Hite Manufacturing Corporation, UI Hearing No. 01605663 (LIRC March 12, 2002); Thomas v. Busse SJI Division, UI Hearing No. 01400081AP (LIRC Sept. 27, 2001).

The question then becomes whether, pursuant to Wis. Stat. § 108.04(7)(b), the employee's quitting was for good cause attributable to the employer, the only exception to the quit disqualification arguably applicable here. Resolution of this question rests on whether the employee's actions justified a drug screen pursuant to the employer's rules and the employee was aware of the circumstances which would trigger a drug screen, and whether the employer's rules bear a reasonable relationship to its business interests. See, Parks v. Specialty Care Services LLC, UI Hearing No. 03605702MW (LIRC Jan. 8, 2004); Moon, supra.

The employer's drug testing policy, as set forth in part in the employment application language set forth above, provides for drug testing of a worker "at any time." The employee testified that he understood this to be the employer's policy. As a result, given this policy, the employer would have been justified in testing the employee at any time. In addition, the record shows that the employer had received two reports: one implicating the employee's use of marijuana on the employer's premises during work hours, and the other the employee's presence at work smelling of marijuana. Even though the employer's policies do not require reasonable suspicion before testing may occur, such reasonable suspicion did exist under the circumstances present here, further justifying the employer's decision to require the employee to undergo drug testing.

The final question then would be whether the employer's drug testing policies bear a reasonable relationship to its business interests. The employer had a legitimate safety interest, as it references in its policies, in expecting its workers, including the employee, who worked with machinery and chemical solvents, to "report to the workplace with no mood altering substance in [their bodies]." See, Girard, supra.

Given that the circumstances reasonably justified a drug screen pursuant to the employer's policies, and that the employer's drug testing requirements bear a reasonable relationship to its business interests, the employee has failed to sustain his burden to show good cause attributable to the employer for the separation. See, Moon, supra.

The commission therefore concludes that, in week 4 of 2009, the employee quit his employment with the employer, but not with good cause attributable thereto or for any other reason constituting an exception to the quit disqualification of Wis. Stat. § 108.04(7)(a).

The commission finds that the employee was paid benefits in the amount of $6,534 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 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, within the meaning of Wis. Stat. § 108.04(13)(f), the overpayment was not the result of department error. See Wis. Stat. § 108.22(8)(c).

The commission further finds that department records do not show that the employer failed to provide correct and complete information requested during the department's investigation of this matter within the meaning of Wis. Stat. § 108.04(13).

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 4 of 2009, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $6,534 to the Unemployment Reserve Fund.

Dated and mailed June 11, 2009
sandgra . urr : 115 : 5  VL 1007.15  MC 652.2

/s/ James T. Flynn, Chairperson

Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge before reversing his decision, because it did not overturn any of his findings of fact, but instead based its reversal on a differing interpretation of the relevant law.

cc: Attorney David C. Schoenberger

Appealed to Circuit Court.  Affirmed January 26, 2010.

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uploaded 2009/07/06