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


SCOTT T HOCHSCHILD, Employe

MIDLAND PAPER CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99606326MW


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 ineligible for benefits beginning in week 32 of 1999, and until seven weeks have elapsed since the end of the week of discharge and the employe has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employe's weekly benefit rate which would have been paid had the discharge not occurred. The employe is required to repay the sum of $2,970.00 to the Unemployment Reserve Fund.

Dated and mailed April 20, 2000
hochssc.usd : 105 : 2  MC 653.2

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission has affirmed the appeal tribunal decision in this case, because it agrees with the appeal tribunal's conclusion of misconduct. As the administrative law judge found, none of the employe's medical reports indicate that the employe is medically unable to abstain from alcohol consumption. Absent such a finding, though, an employe's consumption of alcohol must be deemed volitional, a matter within the employe's control. The employe's case also is not helped by his several failures to have completed recommended treatment programs; instead, the employe would admit himself to treatment facilities and leave as soon as his withdrawal symptoms subsided.

The employe's attorney raises the issue of the applicability of the federal Family and Medical Leave Act and Wisconsin Family Medical Leave Law. The employe's attorney does not challenge the employer's assertion that the federal act is inapplicable. See C.F.R. § 825.111. On the other hand, the employe's attorney is correct as to applicability of the Wisconsin law. Nonetheless, the commission does not believe the employer in this case violated it.

By operation of Wis. Stat. § 103.10(11)(a), no person may interfere with, restrain, or deny the exercise of rights under the Wisconsin Family and Medical Leave Law. The employe's attorney argues that the employer did just that, by discharging the employe when the employe had indicated that he would be taking a leave in order to enter a treatment facility to address his alcohol dependence. The record indicates, though, that the employer's discharge of the employe was not because of this intention of the employe, but rather because the employe called into work on the morning of August 3, to tell the general manager that he could not report to work that morning because he was intoxicated. While it is true that, in the same conversation, the employe indicated he would be checking himself into a treatment facility, the record is clear that the discharge was not due to any such intention by the employe, but rather because of the fact of the employe's intoxication. The employe's reading of the statute is too broad, in that it would allow employes to shield otherwise-culpable behavior any time the employe also requests leave under the Family and Medical Leave Law. The commission does not believe this was the intent of the law; for these reasons, and those stated in the appeal tribunal decision, the commission has affirmed that decision.

cc: SAMUEL BUTLER
C/O CONTINENTAL INVESTIGATIONS AND SECURITY LTD

ATTORNEY BETSY KATTEN
WINSTON & STRAWN

ATTORNEY ROBERT M MIHELICH
ALAN C OLSON & ASSOCIATES SC


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]