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

SCOTT M NIEBLER, Employee

APPLE HOSPITALITY GROUP LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09601306MW


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 eight months as a cook for the employer, a restaurant. He was discharged on January 12, 2009 (week 3).

The issue is whether the actions for which the employee was discharged constitute misconduct connected with his employment.

On December 29, 2008, the employee cut his hand at work and sought medical attention. Consistent with the employer's policy, the employee underwent a post-accident drug screen.

The drug testing laboratory subsequently provided notice to the employer that the employee had tested positive for marijuana, and the employee was discharged as a result.

The employee admits that he smoked marijuana on December 25, 2008.

The employer's drug policy (exhibit #3) states as follows, as relevant here:

Drug Free Workplace Policy

PURPOSE

Wisconsin Hospitality Group...is committed to providing a safe work place, promoting high standards of performance, protecting the health and safety of our employee and guests, and maintaining our guests' confidence in our products and services. WHG believes that its applicants, employees, agents and contractors are aware of the obvious and potentially serious threats to themselves and to others, as well as the risk to the successful conduct of our business affairs, which could result from involvement with illegal drugs.

WHG believes that abusive or illegal involvement with drugs, whether on or off the job, may affect job performance and endanger the health and well-being of both the individual involved and those coming in contact with that individual. Such involvement also may adversely affect the Company's reputation in the community. For those reasons, WHG has adopted this policy, which applies to all full-time, part-time and temporary employees and all agents and contracts of the Company. ...

POLICY

...2. The use...of prohibited substances, whether on or off the job, may: i) adversely affect an individual's job performance; ii) jeopardize the safety of WHG employees and the public; iii) adversely affect the Company's operations; and iv) undercut public confidence in WHG. For those reasons, such actions are also expressly prohibited.

Post-Accident, Reasonable Suspicion Drug Testing Program

...POLICY

1. WHG requires an employee to submit to a drug test...any time that employee is injured at work and that injury requires professional medical attention...or whenever the company has reasonable suspicion to believe that an employee's work performance or on-the-job behavior may have been affected by drugs....

6. An employee who tests positive for illegal drugs on the job will be immediately discharged from employment....

On April 21, 2008, the employee acknowledged in writing his receipt of this policy, as well as his understanding that "the Wisconsin Hospitality Group has a mandatory, post-accident drug-testing program and if I am injured on the job and my injury requires medical attention...: I will be required to submit to a drug test..." and that "if a required drug test yields a positive result...my employment with Wisconsin Hospitality Group will be terminated immediately..."

The first issue here is whether the employee was on notice that off-duty drug use was prohibited by the employer and could result in his discharge. In Koss v. Menonomee Indian Tribe, UI Hearing No. 97-400031 (LIRC April 10, 1998), the commission held that, in order to deny benefits for off-duty drug use based on a positive drug test, the employee must knowingly violate a reasonable employer rule prohibiting off-duty use of illegal drugs, and, to be reasonable, the employer's rule must prohibit both on-duty and off-duty use of illegal drugs, be known to the employee, be set forth in writing, and spell out the consequences of a positive test result. See, Coleman v. U Line Corp., UI Hearing No. 03602548MW (LIRC Oct. 7, 2003).

Here, the employer's policy meets all of these criteria. Despite this, the ALJ, finding that the employee did not exhibit any signs of being under the influence of a controlled substance on December 29, and relying upon "available medical research" not a matter of record, held that the employer had not sustained its burden to prove misconduct.  However, the test is not, as the ALJ states, whether the employee's off job conduct affected his work performance, but instead, as set forth in Koss, whether the employee knowingly violated a reasonable employer policy prohibiting off-duty drug use.

The remaining question then is whether adequate evidence exists upon which to base a finding that the employee in fact had illegal drugs in his system on December 29, 2008.

Although the chain of custody form (pages 2 and 3 of exhibit #2) is properly completed and certified, the drug test report form (page 1 of exhibit #2) is not certified and is, as a result, insufficient to show that the employee actually tested positive for marijuana. See, Hayes v. Wilde Motors, UI Hearing No. 04607617 (LIRC Nov. 24, 2004); Smith v. Laidlaw Transit Services, Inc., UI Hearing No. 07603870MW (LIRC Oct. 12, 2007).

However, as the commission has previously held, admitted drug use by an employee is sufficient to establish misconduct under the circumstances present here. See, Graveen v. Lac du Flambeau Band of Lake Superior Chippewa Indians, Inc., UI Hearing No. 08202198RH (LIRC Jan. 30, 2009)(admitted use of drug under policy providing for discharge upon positive drug test is misconduct); Bartosh v. Motion Industries, Inc., UI Hearing No. 02201209EC (LIRC Sept. 18, 2002).

Here, the employee admits smoking marijuana four days before the date of his work injury. This admission, coupled with the sufficiency of the employer's policy, establishes misconduct.

The commission therefore concludes that the employee was discharged in week 3 of 2009 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 $1,5221  (1)  for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1), and that the employee is required, pursuant to Wis. Stat. § 108.22(8)(a), to repay this amount to the Unemployment Reserve Fund.

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).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 3 of 2009, 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 the sum of $1,522 to the Unemployment Reserve Fund. This determination also results in an overpayment of federal additional compensation (FAC) benefits that must be repaid. The employee will receive a separate "UCB-25 Notice of Federal Additional Compensation Overpayment" regarding the amount of FAC benefits that must be repaid.

Dated and mailed June 24, 2009
nieblsc . urr : 115 : 5  MC 651.2

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before reversing his decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

 

cc: Attorney Daniel J. LaRocque (Department of Workforce Development)



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Footnotes:

(1)( Back ) The employee requalified as of week 19 of 2009, but his maximum benefit amount was reduced to $103, which meant he exhausted benefits in week 20 of 2009. The employee is not eligible for EUC08 benefits.

 


uploaded 2009/07/16