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

RICHARD F ADAMS, Employe

PENDA CORPORATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 95002425BO

An administrative law judge (ALJ) for the Unemployment Compensation Division of the Department of Industry, Labor and Human Relations 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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked during four months as a finisher for the employer, a plastics manufacturer. His last day of work was April 25, 1995 (week 17).

At the time the employe began working for the employer it had in effect a policy prohibiting the use of drugs or evidence of drugs in excess of the maximum legal amount in one's system. It enforced this policy through pre-employment testing and testing upon reasonable suspicion of drug use based on a worker's conduct, appearance, or work performance. On April 23, 1995, the employer amended its policy to also provide for testing after any accident which required medical attention. The policy provided for discipline, up to and including discharge, for violating the terms of the policy. The stated reasons for the policy were to ensure a safe healthful working environment for all employes; reduce substance abuse-related injuries and property damage; ensure productivity and product quality; reduce substance abuse-related absenteeism and tardiness; deter individuals from bringing, possessing, using, distributing or having in their systems alcohol or other drugs on the employer's time or premises; and help the employer maintain its position of leadership in the industry.

On April 25, 1995, the employe injured his wrist at work and, after reporting the injury to his supervisor, was directed to the local hospital and his wrist was placed in a splint. Following such treatment, he was directed to, and did, submit to urinalysis. On April 28, 1995 (week 17), the employe and employer were notified that the employe tested positive for marijuana. The employer discharged him on that same day for violating the employer's "drug-free workplace" policy. The employe had used marijuana one to two weeks before he was tested.

The issue to be decided is whether the employe was discharged for misconduct connected with his employment.

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."

The administrative law judge found that the employe's discharge was not for misconduct because a positive test result, without evidence of on-the-job impairment, was not sufficiently connected to the employe's work for the employer. The commission disagrees.

Prior to the watershed decision in Miller Compressing Company v. LIRC and Flowers, Milwaukee Co. Cir. Ct., Case No. 88-CV-017755 (1989), the commission generally required that evidence of drug use be linked to a work rule prohibiting the use or possession of a controlled substance on the job or impairment on the job either from on-duty use or off-duty use. The court in Miller addressed the issue of whether an employe's discharge for testing positive for an illegal substance in violation of the employer's policy constituted misconduct, even though there was no evidence that the employe used the drug or was impaired by the drug while working. The court in Miller held that a rule which governs off-duty conduct must bear a reasonable relationship to the employer's interest. The court in Miller found such reasonable relationship based on an employer's safety interests and productivity concerns. The court in Miller also noted the difficulty in determining when someone is under the influence. Since Miller, other courts have found that a worker's off-duty use of an illegal substance can be the basis for finding misconduct if the policy is designed to insure the safety of an employer's workers, the public, or improve productivity. See e.g., Dale White v. LIRC and Stoughton Trailers, Inc., Dane Co. Cir. Ct., Case No. 90-CV-5006 (1991)(Prohibition against off-duty use of illegal drugs reasonable in light of employer's interests in the safe and efficient operation of its business); Terrance Shanahan v. LIRC and Brew City Distributors, Milwaukee Co. Cir. Ct., Case No. 94-CV-23 (1994) (Prohibition against off-duty drug use reasonable given employer's interest in safety and the fact that marijuana affects negatively human coordination and performance.)

Since Miller, the commission has likewise found that off-duty drug use, in violation of an employer's policy, constitutes misconduct connected with the worker's employment. The commission's decisions have echoed the concerns and rationale first enunciated in Miller. In Thomas Trachte v. Madison-Kipp Corp., (LIRC, 2/25/93), the commission stated:

...[A] rule which prohibits off-duty use of controlled substances is reasonable if it is designed to ensure the health and safety of an employer's workers. In this case, the stated purpose of the employer's rule is to ensure promotion of a safe, productive and a drug-free environment at its workplace. The goal of the rule was to increase the rate and quality of production, and to decrease tardiness and health-related attendance problems. The employer's interests are served by such its(sic) policy and an employe's continued use of illegal controlled substances, is likely to interfere with those interests. The commission, therefore, concludes the employer's rule is reasonable.

In Brown v. Zander's Creamery, (LIRC, 2/1/90), the commission held that a prohibition against off-duty drug use was reasonable because drug use in the work place is a costly and significant problem, impairment may exist without any outward signs detectable by a lay person, and there is no legally protected right to engage in illegal drug use. Citing such factors, the commission concluded that it is "reasonable to impose a 'blanket' prohibition against illegal use of controlled substances by its employes rather than one which only prohibits impairment while on duty." See also Jonathan Fidler v. Stoughton Trailers, (LIRC, 10/28/92) (A rule which prohibits off-duty drug use of controlled substances is reasonable if designed to ensure the health and safety of the employer's workers.); Robert Kernler Jr. v. Marten Transport Ltd., (LIRC, 2/16/93) (Discharge based on a positive test result for off-duty use of cocaine was for misconduct where policy's purpose was to provide the employer's workers with a drug free workplace and to insure public safety.); Jayson Storts v. Springs Window Fashions Div. Inc., (LIRC, 6/11/93) (Discharge based on a positive test result for off-duty use of marijuana was for misconduct where policy's purpose was to prevent lost productivity, theft, damage to company property, absenteeism, and accidents.); Jeffrey Brandner v. Stone Container Corp., (LIRC, 3/8/95) (Discharge based on a positive post-accident test result for off-duty drug use was for misconduct where policy's purpose was to provide a safe working environment.).

The purposes of the employer's policy in this case encompass nearly all the concerns previously recognized by the courts and the commission as reasonably related to the employer's interests and which make a policy proscribing off-duty drug use reasonable.

Although the employer amended its policy to require testing after any work accident requiring medical attention, the employer's policy had always prohibited off-duty drug use, at least in so far as it resulted in a positive test result for an illegal substance. The employe was thus aware at the time he intentionally ingested marijuana that his conduct, if discovered, would result in his separation from employment. Thus, the employe engaged in intentional conduct in substantial disregard of the employer's interests.

The commission therefore finds that in week 17 of 1995, the employe was discharged for misconduct connected with his work, within the meaning of sec. 108.04(5), Stats.

The commission further finds that the employe was paid benefits for weeks 18 through 32 of 1995, in the amount of $1320, for which he was not eligible within the meaning of sec. 108.03(1), Stats., and to which he was not entitled.

The commission further finds that waiver of benefit recovery is not required under sec. 108.22(8)(c), Stats., because although the overpayment did not result from the fault of the employe as provided in sec. 108.04(13)(f), Stats., the overpayment was not the result of a departmental error. See sec. 108.22(8)(c)2., Stats. Rather, the overpayment in this case results from the commission's reversal of the appeal tribunal decision.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 17 of 1995, and until seven weeks have elapsed since the end of the week of discharge and the employe has earned 14 times the weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $1320 to the Unemployment Reserve Fund.

Dated and mailed: August 18, 1995
adamsri.urr : 132 : 3  MC 651.1  MC 651.2    MC 692.02

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility and demeanor. The commission has not reversed the administrative law judge's decision based on any differing opinion as to credibility. Rather, the commission has reached a different legal conclusion when applying the law to the facts of the case. The commission does not believe that the off-duty use of an illegal substance can be compared with other legal off-duty activities which may potentially adversely affect the employer's interests. Simply put, there is no legally protected right to engage in illegal activity.

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