CHARLES H WOLFE, Employee

POTAWATOMI BINGO CASINO, 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 approximately five years as a poker dealer for the employer, a gambling casino. He was discharged on April 7, 2009 (week 15).

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

In 2005, the employee tested positive for marijuana. He was placed in the employer's rehabilitation program as a condition of his continued employment. The employee underwent a drug screen on March 18, 2009, and tested positive for Percocet/Oxycodone.

The employee was discharged as a result.

The stated purpose of the employer's drug policy is:

Potawatomi Bingo Casino is committed to providing a safe, healthy and efficient work environment for its team members, vendors and guests. This commitment is undermined when Potawatomi Bingo Casino's team members use, possess, sell, distribute or manufacture illegal drugs at any time or are under the influence of alcohol while working.

This drug policy prohibits the "use, possession, sale distribution or manufacturing of non-medically prescribed controlled substances...at any time." This policy also provides:

Outcome of Positive Drug or Alcohol Test

If a team member has completed his or her introductory period and fails a drug or alcohol test, he or she will be referred to Human Resources for further investigation. As a condition of continued employment, the team member will be required to be in compliance with the Team Member Assistance Program. All subsequent drug or alcohol tests must remain negative or termination will result. ...

The agreement the employee signed on June 14, 2005, as the result of his "verified positive urine drug screen," stated that, "[a]ny subsequent positive drug screen will result in my immediate termination."

The employee stated in a document he prepared on April 28, 2009 (exhibit #7) that he was in a car accident in January 2009.

At hearing, the employee testified that, two to three weeks after the accident, his back began to hurt and, as a result, the day before he was tested on March 18, 2009, he took a Percocet for the pain.

The employee does not dispute that this Percocet had been prescribed for another individual, not the employee.

The employee testified (see page 6 of synopsis) that, when he took the Percocet, he knew he was in violation of the employer's drug and alcohol policy.

The employee subsequently sought medical treatment and was prescribed medication for his pain.

The employee explains that, since he did not have health insurance, he did not seek medical treatment after the accident. However, the record shows, through the medical records offered by the employee (exhibit #6), that he qualified for medical services through the Veterans Administration.

Percocet/Oxycodone, is a narcotic, and is classified as a controlled substance. The taking of Percocet without a prescription would qualify as the use of a non-medically prescribed controlled substance within the meaning of the employer's drug policy.

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); 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 stated purpose of the employer's policy is to provide a safe, healthy and efficient work environment for its team members, vendors and guests. This satisfies the test established in Miller and its progeny.

The employee argues that his culpability is mitigated by the fact that he did not take the Percocet for recreational purposes but due to pain. Under the circumstances present here, the employee's motive for taking the unprescribed Percocet is irrelevant. If the employee ingested a narcotic, regardless of the reason, it was his duty to notify the employer so that it could make an informed decision as to his fitness for duty.

The employee also argues that his use of the Percocet was justified by the fact that he did not have health insurance and could not afford treatment for his sore back. However, as referenced above, the record shows that the employee was eligible for medical care through the Veterans Administration. Moreover, the record does not establish why health care would have been affordable and accessible to the employee on March 26, when he sought treatment, but not before March 18, when he took the Percocet.

The evidence of record, including the employee's admission that he knowingly violated the employer's drug policy, supports a conclusion that the employee engaged in misconduct.

The commission therefore concludes that the employee was discharged in week 15 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 $874 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).

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 15 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 $874 to the Unemployment Reserve Fund.

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 November 5, 2009
wolfech . urr : 115 : 6   MC 651

/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.

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