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


KURTIS D PITTS, Employe

MAYFIELD MANUFACTURING, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99001366MD


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, except that it makes the following modification:

The sixth and seventh full paragraphs of the appeal tribunal's FINDINGS OF FACT AND CONCLUSIONS OF LAW are deleted and the following paragraph is substituted therefor:

"The employer contended that the employe's positive drug test was in violation of its policy, and constituted misconduct connected with his employment. This contention cannot be sustained. The employe did not receive a copy of the employer's drug policy until the day he was sent for the drug test. Thus, the employe did not have an adequate opportunity to conform his off-duty conduct to the employer's expectations. While it appears that the employe used an illegal substance prior to being hired by the employer and receiving a copy of its drug policy, his actions in so doing were not connected to his employment with the employer."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employe is eligible for benefits beginning in week 3 of 1998, if he is otherwise qualified.

Dated and mailed June 30, 1999
pittsku.umd : 164 : 2   MC 651.3  MC 651.4

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In its petition for commission review the employer argues that, prior to being hired by the employer, the employe worked for it as a temporary employe through an agency that required a drug screen. The employer contends that the employe was notified of the consequences of drug use while working for the employer and knew that any use of illegal drugs on or off the job would result in his discharge. The employer's argument fails. The record does not indicate that, prior to becoming an employe of the employer, the employe was made aware of the employer's drug testing policies or knew that his permanent hire by the employer was contingent upon his passing a pre-employment drug screen. To the contrary, the evidence in the record indicates that the employe did not receive a copy of the employer's drug testing policy until the day he began his employment for the employer and was sent for the drug test. Consequently, the employe's off-duty use of an illegal substance prior to being hired by the employer cannot be considered conduct connected with his employment for the employer.

The employer also takes issue with the appeal tribunal's conclusion that it never hired the employe, arguing that if this is the case, it should not be a party to the employe's UI claim. The employer contends that it hired the employe on January 12, 1999, and that he was discharged on January 16, 1999, when the employer learned he failed the drug screen. The facts in this case are as stated by the employer, and the commission has modified the appeal tribunal decision to delete those portions of the decision which indicate that the employe was never hired by the employer. However, this modification notwithstanding, the commission agrees with the appeal tribunal's conclusion that no misconduct was established. Accordingly, the appeal tribunal decision is affirmed.


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