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

TERRY L BARROW, Employee

HO CHUNK NATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09000795BO


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1 . The following is inserted after the fourth sentence in the second paragraph on page 3 of the appeal tribunal's FINDINGS OF FACT and CONCLUSIONS OF LAW:

"Applying a retrograde analysis, whereby the employee is assumed to metabolize alcohol at a rate of 0.015 per hour, the employee would have been at about 0.10 when he reported for work at 9:30 a.m.  See, Rowe v Walker Stainless Equipment Co. Inc. (LIRC, Dec. 19, 2003)."

2. The following is inserted after the fourth sentence in the third paragraph on page 3 of the appeal tribunal's FINDINGS OF FACT and CONCLUSIONS OF LAW:

"Assuming the employee metabolizes alcohol at a rate of 0.015 per hour, he would have been at about 0.08 when he reported for work at 9:30 a.m."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 52 of 2008, 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.

Dated and mailed July 10, 2009
barrote . umd : 164 : 5  MC 652.5  MC 653.1

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

In his petition for commission review the employee argues that he should not be denied unemployment benefits based on an alcohol content of 0.047, when no other evidence of impairment is shown.  The employee's argument fails.  On December 7, 2008, the employee was sent for alcohol testing because a co-worker reported that there was reasonable suspicion the employee was under the influence of alcohol at work.  The employee's test result came back at 0.079, an hour and a half after the start of his shift.  State law presumes that an individual whose blood alcohol content is 0.08 or above is impaired.  See, Wilson v. Tramont Corp. (LIRC, Feb. 29, 2008).  At the time the employee reported for work at 9:30 a.m., his blood alcohol content would have been approximately 0.10.   Only five days later, at which point the employee knew he was going to be placed on probation for having reported to work with alcohol in his system on December 7, the employee again reported for work in a condition giving rise to a reasonable suspicion report by a co-worker, and again tested positive for alcohol.  While the confirmation test performed at 11:30 a.m. came back at 0.047, at the time the employee reported for work at 9:30 a.m., his blood alcohol content would have been about 0.08, the amount by which is an individual is presumptively considered to be intoxicated in the State of Wisconsin.  The employee's job was as a games dealer, and he was required to interact with customers and to assume responsibility for large sums of money. The employee's actions in reporting for work in an impaired state on two occasions in a one-week period, the second instance with knowledge that his actions would cost him his job, evinced misconduct connected with his employment. Accordingly, the appeal tribunal decision is affirmed.


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