Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Milwaukee Compressing Company v. LIRC and Frank J. Flowers, Case No. 88-CV-017755 (Wis. Cir. Ct., Milwaukee Co., October 4, 1989)

Digest Codes: MC 651.1  MC 651.2 

Flowers worked in Miller's scrap yard as a "torcher," cutting up scrap metal. The hearing record reflected that co-workers operated cranes, front-end loaders, forklifts and other machinery, but there was no evidence as to whether Flowers' work was performed in proximity to those other activities.

About two years after Flowers was hired, the employer instituted a drug-testing program which required all employes to undergo an initial screening urinalysis for illegal drug use;  those who tested positive were subject to a second random test of both urine and blood samples any time up to one year after the initial positive test. They were also offered counseling services at the employer's expense. Those who then had a second positive test were subject to discharge.

Flowers' screening urinalysis was positive for cocaine metabolites; his second test, performed 35 days later, was also positive and showed a higher concentration of cocaine metabolites. The employer discharged Flowers and contended that his discharge was for misconduct.

The employer's expert witness testified that current tests for cocaine metabolites cannot show when cocaine was ingested and cannot show the degree of impairment, if any, of mental or physical capacity at the time the sample is taken (in other words, the tests cannot establish on-the-job use or on-the-job impairment). At best, the tests show that cocaine has been ingested within the 72 hours preceding the taking of the sample. Impairment, according to the employer's expert witness, lasts, at most, eight (8) hours after ingestion.

A DILHR deputy's Initial Determination held that Flowers' discharge was not for misconduct connected with his employment. The Appeal Tribunal affirmed. A majority of the Commission affirmed, stating in its Memorandum Opinion that it has consistently held that on-the job drug use or on-the-job drug impaiment must be shown by an employer in order to meet the employer's burden of proving misconduct. The Commission majority also held that the employer was, in effect, attempting to exercise police powers over its employes' off-duty conduct and that this aspect of the employer's rules was unreasonable. The dissent opined that the employer's rule was as reasonable as that of the employer in Gregory v. Anderson, 14 Wis. 2d 130 (1961).

Held:   Reversed.  Flowers was discharged for misconduct. While acknowledging that the drug tests in issue could not show drug use on the job or actual impairment on the job, the Court notes that "the issue as to whether a positive drug test is misconduct per se is one of first impression in this state" as to which the Court would only accord "due weight" to the Commission's conclusion of law. Specific factors underlying the Court's conclusion of law that Flowers was discharged for misconduct are:

1. An employer may promulgate rules governing employes' offduty conduct if such rules have a reasonable relationship to the employer's interests (citing Gregory v. Anderson).

2. Former President Ronald Reagan issued an Executive Order in 1986, declaring that drug use has serious adverse effects upon national work force productivity.

3. The employer presented evidence that cocaine is highly addictive and that its decreases coordination and judgment.

4. Flowers tested positive for drug use two times within two months and had a higher concentration of cocaine metabolites in the second test.

5. The Commission's decision would require supervisory observation of an employe's appearance and performance to determine whether the employe is under the influence of drugs, a determination that a "casual observer cannot always" make.

6. The nature of the employer's operation (involving the machinery described above) "clearly required that (Flowers) not be under the influence of cocaine which could impair his ability to perform his job safely."

7. The employer's drug testing policy is reasonably related to its business because it allows the employer to prevent serious accidents.

8. Flowers "knowingly" violated the employer's "policy against drug use."

9. Flowers had been given the opportunity to seek counseling after the first positive drug test.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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