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

KEITH W SCHROEDER, Employee

MCELROY METAL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09001214BO


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 two years as a machine operator for the employer, a manufacturer of steel building components. He was discharged in week 6 of 2009.

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

On March 6, 2007, the employee signed an acknowledgement that he had received the employer's drug and alcohol policy. This acknowledgment/policy states as follows, as relevant here:

This is to acknowledge that I have had explained to me the drug and alcohol policy of McElroy Metal Mill, Inc., and that I understand that compliance with that policy is a condition of my being employed by and remaining employed by McElroy Metal. I further understand that the policy prohibits employees...from having illegal drugs...in their blood or urine...

In order to insure compliance with the policy, I understand that McElroy Metal can request that either I or any other employee submit to a drug...screening test to determine if there has been a violation of the policy....I understand that if I consent to taking a screening test and I fail to pass it, I will be subject to disciplinary action up to and including discharge.

I have read the above acknowledgement in its entirety, and I agree to comply fully with McElroy Metal's drug and alcohol policy....

Consistent with its drug testing policy, each of the employer's workers was tested on Tuesday, January 27, 2009. This was a saliva test and it was reported to the employer that the employee had tested positive for drugs.

As a result, a urine test was administered to the employee on Tuesday, February 3, 2009.

It was reported to the employer that the employee had tested positive for marijuana. The employer discharged the employee as a result.

The employee testified as follows:

* He understood that the employer's drug policy applied to off-duty use of drugs and prohibited such use.
* He knew that off-duty use of drugs might "show up as positive" in violation of the employer's drug policy.
* He smoked marijuana on a Monday or Tuesday night before the drug test.
* He knowingly violated the employer's drug policy.

In Koss v. Menominee 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).

The employer rule at issue here satisfies each of the Koss requirements. The policy is set forth in writing, and known to the employee. The fact that the policy, by its terms, prohibits employees from having illegal drugs in their blood or urine satisfies the requirement that the policy prohibit off-duty use of illegal drugs. See, Stushek v. Graphic Packaging Corp., UI Hearing No. 02402158AP (LIRC April 10, 2003). Moreover, the employee testified that he was aware that the policy prohibited off-duty drug use. Finally, the policy spells out the consequence of a positive test result, i.e., disciplinary action up to and including discharge.

A further requirement is that the employer's policy bear a reasonable relationship to the employer's interests. In Miller Compressing Company v. LIRC and Flowers, Case No. 88-CV-017755 (Wis. Cir. Ct. Milwaukee County Oct. 4, 1989), the court established the test that a rule which governs off-duty conduct must bear a reasonable relationship to the employer's interests. The court in Miller found such a reasonable relationship based on an employer's safety interests and productivity concerns. Since Miller, the commission and courts have found misconduct for violations of policies prohibiting off-duty drug use where the employer has established a valid business interest that is served by such policy. See e.g., White v. LIRC and Stoughton Trailers, Inc., No. 90-CV-5006 (Wis. Cir. Ct. Dane County Nov. 24, 1991)(prohibition against off-duty use of illegal drugs reasonable in light of employer's interests in the safe and efficient operation of its business); Shanahan v. LIRC and Brew City Distributors, No. 94-CV-23 (Wis. Cir. Ct. Milwaukee County Dec. 30, 1994)(prohibition against off-duty drug use reasonable given employer's interest in safety and the fact that marijuana affects negatively human coordination and performance). See, also, Brown v. Zander's Creamery (LIRC Feb. 1, 1990)(prohibition against off-duty drug use reasonable since impairment may exist without any outward sign, and drug use costly and significant workplace problem); Kernler v. Marten Transport Ltd. (LIRC Feb. 16, 1993)(positive test for off-duty use of cocaine misconduct where employer had legitimate interest in providing its workers with a drug free workplace and in ensuring public safety).

Here, the employer, a manufacturer, testified that its drug and alcohol policy was reasonably related to its interest in maintaining a safe work environment. Given the employee's role as a machine operator, this interest is certainly a reasonable one. See, White, supra.; Switon v. Magnum Products LLC, UI Hearing No. 05402160OS (LIRC Dec. 21, 2005); Rowe v. Walker Stainless Equipment Co., Inc., UI Hearing No. 03001017BO (LIRC Dec. 19, 2003).

In addition, in order to establish misconduct, the record must show that the employee engaged in off-duty use of an illegal drug. The employer did not establish by competent expert evidence that the employee tested positive for marijuana. However, such expert evidence is not necessary here since the employee admits in his testimony that he used marijuana before he was tested. See, Melotte v. Menominee Indian Tribe, UI Hearing No. 06401084AP (LIRC Aug. 4, 2006)(not necessary to determine whether the drug testing report which became a part of the record was properly completed and certified, because the employee admits in her testimony that she used cocaine the weekend before the test).

The employer's drug policy states that failing to pass a drug test will result in "disciplinary action up to and including discharge." This language is sufficient to have placed the employee, who admits he knowingly violated the policy, on notice that he was subject to discharge for a positive test result. See, Adams v. Penda Corp., UI Hearing No. 95002425BO (LIRC Aug. 18, 1995)(misconduct established by intentional violation of employer's drug policy calling for discipline, up to and including discharge, for its violation); Rowe, supra. (misconduct established by intentional violation of employer's drug policy calling for discipline, including discharge, for its violation); Stushek v. Graphic Packaging Corp., UI Hearing No. 02402158AP (LIRC April 10, 2003)(misconduct established by intentional violation of employer's drug policy calling for severe discipline, which may include immediate termination, for its violation); Mading v. Metals USA Fullerton Metals Co., UI Hearing No. 02007468FL (LIRC July 21, 2003)( misconduct established by intentional violation of employer's drug policy providing that violators will be subject to discipline, including discharge); Elmore v. Marten Transport Ltd., UI Hearing No. 05003145MD (LIRC Dec. 21, 2005)( misconduct established by intentional violation of employer's drug policy calling for disciplinary action up to and including discharge for its violation).

The employer had a reasonable drug policy which provides that compliance with this policy is a "condition of...remaining employed by McElroy Metal." The employee admits that he knowingly violated this policy. The record supports a conclusion of misconduct.

The commission therefore concludes that the employee was discharged in week 6 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 $4,652 (of which $6 is included in a decision dated August 7, 2009) 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 $4,646 to the Unemployment Reserve Fund as a result of this decision.

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 6 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 $4,646 to the Unemployment Reserve Fund as a result of this decision.

The initial Benefit Computation (Form UCB-700), issued on May 20, 2009, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

This determination also results in an overpayment of federal additional compensation (FAC) benefits that must be repaid. You 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 September 11, 2009
schroke . urr : 115 : 5   MC 652.4  MC 651.4

/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 her 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: McElroy Metal (Mauston, Wisconsin)


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