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

CALVIN EWING, Employee

REMEDY INTELLIGENT STAFFING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09003051MD


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 more than one year in four general laborer assignments for the employer, a staffing agency. He was discharged on April 13, 2009 (week 16).

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

On March 5, 2009, the employee was a no call/no show. When the employer contacted him, the employee explained that he had gone out of town to celebrate his birthday the night before, and had returned to Madison too late to make it in to work. The employee received a verbal warning from the employer.

After March 5, the employee was tardy once or twice.

On April 2, 2009, the employee received a written warning (exhibit #3) from the employer which he signed and which stated as follows:

I understand that any future issues with my attendance while employed through Remedy Intelligent Staffing may result in termination of my job. I understand that I need to be on time every day that I am scheduled to work. In the future, I will give Remedy enough notice to find a replacement if I will be absent from work.

On April 11, 2009, the employee was not present at the start of his shift at 6:30 a.m. The employer phoned the employee at 7:30 a.m. The employee stated that he would be at work soon. The employee reported to work at 8:30 a.m. with the smell of alcohol on his breath. The client sent the employee home. The employee was not required to undergo alcohol testing.

The employer discharged the employee on April 13, 2009.

The employer's attendance policy requires workers to be punctual and to give prior notice of absence or tardiness, and provides for progressive discipline for its violation, i.e., verbal warning, written warning, and 30-60-day probation/termination. This policy also states that failure to provide proper notice would be grounds for termination.

As relevant here, the employer's substance abuse policy (exhibit #1) provides as follows:

The Employer's substance and alcohol abuse policy covers all of our Associates. The Employer and its Clients will not tolerate the unlawful manufacture, use, possession of, distribution of, solicitation or sale of illegal drugs, alcohol, prescription medication...while on duty, while on Employer or client premises, or while operating any vehicle, whether for a Client or a personal vehicle used to commute to the Client's worksite.

Using or being under the influence of any legal obtained drug while working or while on Employer or Client premises is prohibited to the extent that such use or influence affects job safety or efficiency....

Employer drug testing may include:

...Reasonable Suspicion: When the Employer has a reasonable suspicion of alcohol or illegal drug use on the job or affecting work performance and/or safety, such as evidence of alcohol on the breath,...the Employer reserves the right to order blood tests, urinalysis or other drug or alcohol tests for that Associate....

When Associates test positive for or admit to current substance abuse they will be subject to disciplinary action, up to and including termination.

The Employer also reserves the right to take disciplinary action, up to and including termination, based upon its reasonable suspicion of an Associate being under the influence of alcohol while at work, illegal drug use by an Associate when that Associate fails or refuses to consent to the testing when requested, or tampering with the test specimen and/or the drug test results....

Should drug or alcohol testing be deemed necessary and the result of such test is positive, the Associate will be immediately suspended without pay and subject to disciplinary action up to, and including, termination....

There were two bases for the employer's discharge of the employee, i.e., unsatisfactory attendance and violation of its alcohol policy.

The employee admits that, on and after April 2, he was aware his job was in jeopardy due to his attendance record. However, it is not enough for the employer to establish that the employee had reason to be aware that his job would be in jeopardy if he committed a further attendance infraction, and that the employee then committed such an infraction. The employer must also prove that the employee's overall attendance record meets the misconduct standard.

The employer proved that the employee was a no call/no show without valid reason on March 5, was then tardy once or twice, and was tardy without notice on April 11. This is insufficient to meet the misconduct standard. See, Gameson v. Woodmans Food Market, UI Hearing No. 04002237LX (LIRC Aug. 31, 2004)(one no call/no show absence and four incidents of tardiness not misconduct).

Moreover, the employer failed to prove that the employee violated its substance abuse policy. Although the employee concedes that he reported for work on April 11 with alcohol on his breath, under the employer's policy, this triggers testing, not discipline or termination. The record does not show that the employee used alcohol at work. The employer also did not prove that the employee reported to work under the influence of alcohol. The presence of alcohol on a worker's breath does not alone establish that the worker is under the influence of alcohol. See, Dyer v. Platinum Disc Corp., UI Hearing No. 04002229LX (LIRC Sept. 17, 2004); Shedd v. Interstate Blood Bank, Inc., UI Hearing No. 03606437MW (LIRC March 26, 2004)(in absence of corroborating evidence, presence of alcohol on breath does not establish intoxication); Popp v. Metro Milwaukee Auto Auction, UI Hearing No. 04600025RC (LIRC July 8, 2004); Pressnell v. Dufrane Moving & Storage, Inc., UI Hearing No. 07000489FL (LIRC May 7, 2007).

The commission therefore finds that in week 16 of 2009, the employee did not voluntarily terminate his employment within the meaning of Wis. Stat. § 108.04(7), but was discharged and 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 16 of 2009, if otherwise qualified.

Dated and mailed October 30, 2009
ewingca . urr : 115 : 5   MC 651   MC 653.1

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

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.


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