JOHN J PRESTON, 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 more than 12 years as a dealer for the employer, a gambling casino. He was discharged on April 2, 2009 (week 14).
The issue is whether the actions for which the employee was discharged constitute misconduct connected with his employment.
The employee tested positive for cocaine metabolites in 2005, and was placed in the employer's rehabilitation program as a condition of his continued employment.
The employer's drug policy prohibits the use of non-medically-prescribed controlled substances, and provides for immediate termination for a second positive test. The employee signed a document after his first positive test (exhibit # 11), in which he agreed that, "[a]ny subsequent positive drug screen will result in my immediate termination."
The employer's drug policy also provides as follows, as relevant here:
Purpose
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....
Drugs and Alcohol Testing
Random Testing
All team members are subject to random drug screens and must comply within three (3) hours of notification....
Reasonable Suspicion Drug Testing
In the event that a reasonable suspicion of drug use is observed, management has the right to require an immediate drug test...
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 employee underwent a drug screen on March 16, 2009, and it was reported to the employer that he tested positive for Oxycodone. Oxycodone is classified as a controlled substance in Wisconsin. The employee admits that he ingested Oxycodone and did not have a prescription for it.
The employee was discharged for violating 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's policy meets each of these requirements.
The administrative law judge (ALJ) held, however, that the employer failed to prove misconduct because it did not follow the testing procedure set forth in its drug policy.
This policy provides for both random testing and reasonable suspicion testing. The ALJ's theory was that, since the department-wide testing was initiated based upon information provided the employer that individuals in certain departments may be working under the influence of illegal drugs, the testing of the employee could not have qualified as a random test. The commission disagrees.
Reasonable suspicion testing occurs when an individual is suspected of working under the influence of drugs or alcohol and is tested as an individual as a result. See, Nahmens v. MCC Wisconsin LLC, UI Hearing No. 09000647BD (LIRC July 24, 2009). The record does not show that the employer selected the employee for individual testing because it had reasonable suspicion that he had been working under the influence of illegal drugs.
Random testing of the type referenced in the employer's policy permits an employer to select individuals or groups for testing at any time for any reason at its discretion(1). That is what occurred here.
The purpose of requiring an employer to provide notice to workers of its drug testing policies is to permit workers the opportunity to use this information to guide off-duty and on-duty activities. Here, the employee was fully aware that he could be tested at any time, and would be subject to immediate termination for a positive result for a non-medically-prescribed controlled substance.
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); 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 record shows that the employee engaged in misconduct when he violated the employer's reasonable drug policy.
The commission therefore concludes that the employee was discharged in week 14 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 $11,616 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 the employer did not fail to provide correct and complete information requested during the department's investigation of this matter within the meaning of Wis. Stat. § 108.04(13). In the department determination, the adjudicator stated that the employer had not responded to a request for information during the investigation. However, at hearing, the employer not only testified that it had provided this information, but provided documentary evidence to corroborate this testimony.
The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 14 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 $11,616 to the Unemployment Reserve Fund.
The initial Benefit Computation (Form UCB-700), issued on April 2, 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 December 4, 2009
prestjo . urr : 115 : 5 MC 652.1
/s/ James T. Flynn, Chairperson
/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 interpretation of the relevant law.
ROBERT GLASER, Commissioner, (dissenting):
I respectfully dissent from the majority's finding of misconduct. I would affirm the appeal tribunal's finding of no misconduct because the employer violated its own drug testing policy I specifically disagree with the majority's finding that the record does not show that the employer did not test the employer under the reasonable suspicion section of its policy. In doing so, the majority completely ignores the company's testimony that, "In March 2009 the employee was drug tested because there was reasonable suspicion (emphasis added) that workers in certain departments were under the influence."
The company's reasonable suspicion policy provides that, "...in the event a reasonable suspicion of drug use is observed, management has the right to require an immediate test." Here, that was not the case. Management had "heard" that some employees in a department were under the influence of drugs. Based on that allegation, an unidentified management employee decided to test all employees in that department. The employee complied with the test and was terminated after a positive test for a prescription drug.
The majority would not find this to be a test under the reasonable suspicion portion of the policy but to be a random test citing among other cases a 7th circuit court of appeals case which occurred in the State of Indiana. The employee in that case was a public employee who worked in a safety sensitive position and argued in the main that his constitutional rights were violated. The court of appeals found that the city had shown a government interest sufficient to justify submitting Krieg(the employee) to
random, suspicionless drug testing. This case is much different in that the employee was neither public nor in a safety sensitive position and the test was not random and not suspicion-less as testified to by the employer.
In finding the testing to be random, the majority ignores the most common definition of the word, i.e., lacking a definite plan, purpose, or pattern. The employer had a plan (testing everyone} and a purpose (confirming the allegation of impairment). Previous commission decisions have spelled out that a company must have a reasonable written policy which is followed before a finding of misconduct. Here, the company did not follow its own policy and I would find that a policy that requires employees to prove themselves innocent based on an anonymous allegation to be neither reasonable nor random.
/s/ Robert Glaser, Commissioner
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