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


THOMAS D BROWN, Employe

HONDO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99602014RC


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is eligible for benefits beginning in week 8 of 1999, if otherwise qualified.

Dated and mailed July 14, 1999
brownth.usd : 178 : 7  MC 651.4

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In its petition for commission review, the employer initially argues that the employe did not appear at the hearing to refute that he tested positive for marijuana. This is untrue. The employe appeared at the hearing and denied using drugs at the employer's work site or being aware that off-duty drug use could lead to discharge.

The employer further asserts that the ALJ never asked the employer's witness if the drug policy was posted anywhere. The ALJ did ask about posting the drug policy and the employment manager indicated it was not posted. Finally the employer argues that the employe was intoxicated at work and as such was guilty of misconduct even if he had no prior notice of the employer's drug policy. Since there is no non-hearsay evidence that the employe was using drugs at the employer's work site or was intoxicated at work, the employer must show that the employe violated its rule regulating off-duty drug use. In order to show misconduct from such off-duty conduct, the commission has long held that the employer must demonstrate both that the employe had prior notice of both the rule and the consequences before testing.

The employer's rule provided for discharge if illegal drugs were present in one's system. However, the employer was unable to prove the employe had any notice of its rule concerning illegal drugs or the penalties for a positive test. The employer's witness stated that the employe may have been told of it in a brief employe orientation at the beginning of his employment but stated there was no signed acknowledgement. The rules are not posted anywhere in the plant. Since the employer had only the positive drug test, it failed to prove that it met the necessary prerequisites for regulating this employe's off-duty conduct. The mere presence of drug metabolites does not prove intoxication. The appeal tribunal decision is affirmed.

cc: ELIZABETH MARSHALL
C/O PERSONNEL PLANNERS INC


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