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

Subject: Tonie Lawson v. LIRC (Atlas Transit, Inc.), Case 10-CV-21250 (Wis. Cir. Ct., Milwaukee Co., Sept. 13, 2011)


Digest Codes: MC 652.2

The employee worked as a commercial school bus driver for the employer, a business providing transportation services to the Milwaukee Public School District. State and federal regulations require the employer to randomly drug test its employees. The employer's policy provides that employees chosen for a random test have only two hours to report to the testing clinic, and that anyone who either is late or refuses to be tested will be discharged. When an employee's name comes up, the safety supervisor leaves a message for the employee to meet with her, but does not tell the employee why (so as not to give the employee opportunity to counter any drugs that might be in the employee's system).

On the morning of April 27, 2010, the employee's name came up for a random screen, so the safety supervisor had the dispatcher send a message to the employee that the safety supervisor wanted to see her. The employee was out driving routes and so was not going to be returning to the work site until after lunch. During lunch, the employee's husband telephoned her and said he'd received a letter from the Social Security Administration threatening to revoke his benefits. The employee agreed to take him to the Social Security office that afternoon despite not having an appointment and, when the employee went to work after lunch she told the dispatcher she could not drive her afternoon routes. The employee then met with the safety supervisor, who told the employee she needed to report for a drug screening. The employee told the safety supervisor she could not take the test because she had to take her husband to the Social Security office. The safety supervisor told the employee the test would only take ten minutes, following which the employee could take her husband to the office. The employee again said she would not go to the screening. Hours later, the employee left a message with the safety supervisor indicating that she now was available to take the drug test. The next day the employer' general manager told the employee that her refusal to take the drug test the previous afternoon resulted in her automatic termination.

The commission found misconduct. The commission reasoned that the employee had refused to take the drug test, and that her refusal was unreasonable. It was unreasonable because the employee was aware of the employer"s drug policies, she had been scheduled to work a full day, and she had been advised to meet with the safety supervisor.

Held: AFFIRMED. First, the court gave great weight deference to the commission's conclusion of misconduct. The court then concluded that that conclusion was reasonable. The employer's policy was in compliance with federal regulations to which the employee was subject, specifically those requiring unannounced random testing and that drivers notified of selection for testing proceed to the test site immediately. See 49 C.F.R. §§ 382.211 and 382.305(a). The employee was aware of the policy and, when informed of her selection for random testing, she purposefully failed to report to the testing site within the allowed two-hour window. Her failure, finally, could not be characterized as mere insufficiency, unsatisfactory conduct, ordinary negligence, or good faith error in judgment.

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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