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


BECKY D FLAGG, Employe

OLSTEN HEALTH SERVICES (STAFFING) INC , Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99602942MW


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 modifications:

Delete the third sentence of the fifth paragraph after FINDINGS OF FACT AND CONCLUSIONS OF LAW.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employe is eligible for benefits beginning in week 13 of 1999, if otherwise qualified.

Dated and mailed August 31, 1999
flaggbe.umd : 178 : 6 MC 692.02  MC 651.2

/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 asserts that the employe violated its drug policy by smoking marijuana off duty and should be disqualified from benefits. There is no allegation that the employe was under the influence of drugs at work. The employer's policy does not govern off duty conduct. The employe's drug test does not establish a violation of the employer's on duty prohibition, since traces of drug metabolites remain in the body after its effects have worn off. The commission has long held that if the employer intends to regulate off duty conduct its policy must clearly articulate that intention, the basis for it, and that the employer must demonstrate that the employe had notice of it. In this case, the policy does not prohibit off duty use. Therefore, there is no misconduct established.

cc: OLSTEN HEALTH SERVICES


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