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


RANDY L BOECK, Employe

FURST STAFFING SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99001077JV


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, and following discussion with the ALJ regarding credibility, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for approximately three months as a laborer for the employer, a temporary help agency. His last assignment was as a welder for the employer's client company. His last day of work was on or about February 18, 1999 (week 8). He was discharged on February 22, 1999 after failing a drug test.

The employer's substance abuse policy prohibits an employe from working "under the influence" of illegal drugs. The employer's policy defines "under the influence" as testing positive for illegal drugs pursuant to a drug test required by the employer. A positive drug test can lead to termination pursuant to the policy. Accordingly, the employer's policy regulates an employe's off-duty conduct concerning illegal drugs.

On or about February 18, 1999, the employe suffered a work injury to his hand and was treated for his injury at a hospital or clinic. After he received medical treatment, he submitted to a drug test pursuant to the employer's substance abuse policy. The employe tested positive for marijuana. The employe was discharged on the basis of the positive test for violating the employer's drug policy.

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 compensation 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."

At the hearing, the employe testified that he submitted six different urine samples at the clinic. Five were rejected due to low temperature or insufficient quantity. The employe saw all six samples and testing kits together when he finally produced an acceptable sample. He does not know for certain which sample he saw sealed and initialed. However, he has not alleged that any sample not belonging to him was in the room. The commission does not find that this explanation in any way relieves the employe of responsibility for the positive drug test. The employer offered a properly certified drug testing form complete with the necessary chain of custody form which satisfies the commission that the sample tested belonged to the employe. That sample violated the employer's reasonable rule forbidding the use of illegal drugs and the employe was on notice of the consequences of a positive test.

The commission therefore finds that in week 8 of 1999, the employe was discharged for misconduct connected with his work for the employer within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits totaling $4,629 during weeks 9 through 34 of 1999, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22 (8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 8 of 1999, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $4,629 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed September 10, 1999
boeckra.urr : 178 : 5   MC 651.2  MC 652.4 

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission consulted with the ALJ regarding credibility prior to reversing. The ALJ indicated that she did not find the employe especially credible in his testimony. However as she indicated in her decision, she did not find the drug testing form to be a sufficiently reliable basis for a finding of misconduct due to the lack of identifying information regarding the certifier of the report. The form itself indicates that it must be signed by the person conducting the test or an authorized party. Authorized party is not defined.

Although the drug form asks for credentials for the lab and for the individual who conducts the test, there is no similar requirement for the certifier. The individual is authorized by the employer to sign not by the department. The signer, on behalf of the employer, certifies under pain of penalty that the contents are accurate. So long as the employer has designated that individual to act as its agent, no other authorization is required. The commission accepts the report as sufficient evidence of the positive drug test and finds misconduct on that basis.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.C. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Compensation Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.


Appealed to Circuit Court.

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