LINDA S CUMMINGS, Employee

RIISER WAUSAU ENERGY, 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 a little over three years for the employer, a gasoline and convenience store business. She initially worked part time as a customer service representative/cashier, and then after approximately one and one-half years, she became lead customer service representative at the facility where she worked. Her last day of work was June 18, 2009 (week 25), when she was placed on an unpaid suspension. She was discharged on June 23, 2009 (week 26).

The employer has a written substance abuse policy contained in the employee handbook. The employee had received a copy of the employee handbook. The policy provides for a drug/alcohol screen under various circumstances. The workers at the facility where the employee worked were subjected to a random
drug screen on June 18 because earlier that month there had been a transfer of marijuana between two workers. The employee was not involved in that matter. The results of the employee's drug test were positive for amphetamines, and the employee was discharged.

The employee had taken a pill given to her by a co-worker a week or two earlier after she had complained of back pain. The employee believed that the pill was an over-the-counter pain medicine. The co-worker later told the employee that it was a prescription medication, Adderall. The employee explained to management personnel that she thought that this was the reason for the positive test result. The employee was informed that the employer had a zero tolerance policy and her employment was terminated.

The issue to be decided in this case is whether the employee's discharge was for misconduct connected with her employment.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

While the employer's policy was a zero tolerance one, the focus in a misconduct inquiry is on the intent of the employee. The commission accepts the employee's testimony that the drug test result occurred because she took a pill that she understood to be an over-the-counter pain medicine. She may have exercised poor judgment in not confirming what the medicine was but she lacked any intent to violate the employer's drug policy when she accepted it. Therefore, her conduct does not demonstrate a deliberate and substantial disregard of the employer's interests in a drug free workplace. Her discharge was not for misconduct.

The commission therefore finds that in week 26 of 2009 the employee was discharged from his employment but that the discharge was not for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 26 of 2009, if otherwise qualified.

Dated and mailed February 12, 2010
cummili . urr : 178 : 1 MC 653.3

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission discussed witness credibility and demeanor prior to deciding to reverse. The ALJ did not find the employee's explanation for the positive result particularly credible. The commission reaches a different conclusion. The employee made the same explanation to the employer. There is no reason why the employee should have anticipated that the co-worker would give her a prescription medication without identifying it to her. The employee's failure to confirm what it was amounted to at the most poor judgment and not deliberate misconduct.

cc: Attorney James B. Connell
Attorney Ronald Rutlin

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