TOMMY J BENNETT, Employee

SERVPRO OF BELOIT, 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 seven weeks as a laborer for the employer, a fire and water damage restoration business. He was discharged on March 5, 2009 (week 10).

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

The employee was serving an initial 90-day probationary period at the time of the separation.

The employee's responsibilities included driving employer vehicles to the homes/businesses of the employer's clients and remedying the effects of fire and water damage.

The employee had four absences during his employment:

He called in sick on January 28 even though he admits he was not ill but instead had an appointment for "energy assistance;"
He called in sick on February 18 and 19. He initially testified that he had hurt his back on February 18 when he was mowing his lawn. He then changed his testimony when it was pointed out to him that he would not have been mowing his lawn in February, and testified instead that he had been snowblowing.
He called in sick on February 27.

On March 4, the employee reported to work smelling of alcohol. The employer told his supervisor that he had been out drinking the night before and was not physically able to work that day.

The employee decided he should not work that day because, as he testified, he "didn't want to go to no house under the influence."

The employee was aware of the employer's policy that, if he was at work under the influence of alcohol, he could be subject to discipline, including termination.

The employee was discharged on March 5 for violating the employer's alcohol policy.

The employer's policies (exhibit #1), which the employee received on January 14, 2009, state as follows, as relevant here:

SERVPRO recognizes its future is dependent upon the physical and psychological health of all its employees. The misuse of drugs and alcohol poses a serious threat to both SERVPRO and its employees....It is the responsibility of both employees and the company to maintain a safe, healthful and efficient working environment....

1.4.2 Under the influence

Any employee under the influence of drugs or alcohol which impairs judgment, performance or behavior while on SERVPRO premises or while on company business will be subject to discipline including termination....

It was not necessary for the employer to have tested the employee to determine if he was under the influence of alcohol, because the employee admits that, when he reported to work on March 4, he was under the influence of alcohol to the extent that it impaired his ability to work.

In order for misconduct to be established as a result of their violation, employer policies which limit an employee's ability to consume alcohol during off-duty hours, must be known to the employee; must specify the consequences of a positive alcohol screen (Alexander v. Unified Solutions, Inc., UI Hearing No. 03600003RC (LIRC July 10, 2003), Luis v. Liquid Container Ltd. Partnership, UI Hearing No. 01600159RC (LIRC July 6, 2001); and must bear a reasonable relationship to the employer's business interests (Turner v. Aurora Health Care Metro, Inc., UI Hearing No. 02605534MW (LIRC Feb. 18, 2003), Twining v. Plexus Corp., UI Hearing No. 00402697AP (LIRC Jan. 17, 2001).

The record shows, through both the employee's testimony, and his signed acknowledgement (exhibit #2) that he had received a copy of the employer's policy (exhibit #1), that he was aware of the employer policies at issue here. These policies necessarily imply that off-duty use of alcohol which impairs judgment, performance or behavior, was grounds for discipline, up to and including termination. Finally, given the stated purpose of the employer's substance abuse policy, and given the nature of the work performed by the employee, i.e., the driving of delivery vehicles and frequent customer contact, the record demonstrates that the policies at issue here bear a reasonable relationship to the employer's valid interests in ensuring the safety of its employees and customers, and projecting a positive image to the public and to its patrons. See, Vaaler v. Wettstein & Sons, Inc., UI Hearing No. 03003803LX (LIRC Jan. 27, 2004).

The employee engaged in misconduct when he violated the employer's reasonable alcohol policy.

The commission therefore concludes that the employee was discharged in week 10 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 $864 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. $426 of this amount was withheld as forfeitures in weeks 11 through 16 of 2009. Since the employee is not eligible for benefits in these weeks, $426 will be restored to the forfeiture account.

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 10 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 $864 to the Unemployment Reserve Fund. $426 is restored to the forfeiture account.

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 30, 2009
benneto . urr : 115 : 5   MC 653.1

/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.

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uploaded 2009/12/14