STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DANIEL A KOCH, Employee

DEEPFLEX INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09403589


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a business that manufactures pipes for the oil and gas industry, for about a year as a pipe technician. His last day of work was April 16, 2009 (week 16).

On April 16, 2009, the employee reported for work at 6:00 a.m. smelling of alcohol. When asked if he had been drinking, he denied having had anything to drink for a couple of days. The employer sent the employee for a breathalyzer test. At 6:36 a.m. the employee's blood alcohol concentration (BAC) was 0.021. A confirmatory test performed at 6:54 a.m. revealed a BAC of 0.015.

The employer drove the employee home. During the ride home the employee admitted that he had been drinking the previous evening. The following day the employer sent the employee a letter notifying him he was discharged.

The issue to be decided is whether the employee's discharge was due to misconduct connected with his employment.

The commission has held that, 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, and must bear a reasonable relationship to the employer's business interests. Popp v. Metro Milwaukee Auto Auction (LIRC, July 8, 2004)(citations omitted). The employer's policy does not satisfy these criteria.

The employer contends that it has a "zero tolerance" policy for drugs and alcohol. However, the employer has no written drug or alcohol policy. A "New Employee Orientation Checklist" signed by the employee makes no reference to drugs or alcohol, and the employee testified that when he went through orientation no one mentioned a drug and alcohol policy to him. Neither of the employer's witnesses testified that they personally explained the policy to the employee. Under the circumstances, the record does not support a conclusion that the employee was aware he could be discharged for his off-duty consumption of alcohol.

Further, although the employer contends that it works with heavy equipment, rendering it unsafe to report for work under the influence of alcohol, the employer has not provided any reason to believe that the presence of even an insignificant amount of alcohol in an employee's system would create a safety concern such as might warrant a "zero tolerance" policy. State law presumes that an individual whose blood alcohol content is 0.08 or above is impaired. See, Wilson v. Tramont Corp. (LIRC, Feb. 29, 2008). The employee's BAC of 0.021 was well below that level. The commission has held that, while an employer is justified in proscribing alcohol impairment at its work place, a BAC of .02 has not been demonstrated to correlate with any customary standard of impairment. Butterfield v. Covenant Healthcare System Inc. (LIRC, July 28, 2005). See, also, Turner v. Aurora Health Care Metro Inc. (LIRC, Feb. 18, 2003)(a test result of .035 is too low to support an inference that the employee was under the influence).

Given that alcohol is a legal substance, that the employer presented no competent evidence that it had a "zero tolerance" policy that was communicated to the employee, or of a legitimate business need for such policy, and considering that the employee's BAC was well below the legal level at which impairment is presumed, misconduct was not established.

The commission, therefore, finds that in week 16 of 2009, the employee was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 16 of 2009, provided he is otherwise qualified. He is not required to repay the sum of $5,567 to the Unemployment Reserve Fund.

Dated and mailed March 23, 2010
kochda . urr : 164 : 9 MC 651.4, 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 about credibility and demeanor. Although the administrative law judge found it incredible that the employee did not know of the employer's "zero tolerance" policy, the record contains no evidence to establish that any such policy was communicated to the employee.


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