JENNIFER A GARTZKE, Employee

NWP INC, 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 8 of 2009, if otherwise qualified.

Dated and mailed January 15, 2010
gartzje : 150 : 5 MC 652.1

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The employer petitioned the appeal tribunal decision arguing the administrative law judge's finding of no misconduct was incorrect. Following a review of the record, the commission affirms the appeal tribunal decision as written. In particular, while the employer had a zero tolerance drug and alcohol policy, the policy provided for testing in three specific circumstances: post accident, for cause, and random situations. The policy specifically defined "random" testing as testing of named individuals from a list generated by an outside source. In terms of the criteria for "for cause," the policy provided that "for cause" testing might result from a supervisor's reasonable cause to suspect that an employee is in violation of the employer's drug and alcohol policy or if the employee's job performance is deficient in a manner which suggests a possible violation.

In this case, although the employee was tested under the "for cause" aspect of the policy, the supervisor did not appear as a witness to testify as to the basis of the test in terms of the employee's behavior or her performance. The employer's only witness at the hearing was its human resource manager who testified that he transported the employee for testing but did not observe anything that gave him concern.

In McDougall v. The Simmons Mfg. Co. LLC, UI Dec. Hearing No. 04005728JV (LIRC March 15, 2005), the commission affirmed a no misconduct finding where the policy provided for testing when a worker was involved in an accident resulting in injuries that required medical treatment off site. In McDougall, there was no evidence that the worker was involved in an accident and none of the other employer's criteria for drug testing were shown to exist. The commission found that the employer had no legitimate basis under its own rules for drug testing the employee and absent such a basis, the employer had no basis for holding the positive test against the employee. Also, in PJK Finishing Co., Inc. v. Labor and Industry Review Commission, and Walter J. Pouchert, Case 99-CV-830 (Wis. Cir. Ct., Waukesha Co., December 17, 1999) a no misconduct finding was affirmed by the circuit court where the commission determined that the final drug test was not done in accordance with the employer's drug testing policy. Finally, unlike the recent case of Preston v. Potawatomi Bingo Casino, UI Dec. Hearing No. 09604241MW (LIRC December 4, 2009), the employer's random policy in this matter was defined as to be names generated by an outside source. As such, the situation under which the employee was tested in this case does not fall within that "random" definition.

The employer failed to establish that the test was conducted in compliance with its policy and, therefore, it failed to establish that her discharge was for misconduct connected with the employment.

cc: AESSE Investments

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uploaded 2010/01/26