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

DAWN M GRAVEEN, Employee

LAC DU FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08202198RH


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 by the Department of Workforce Development.

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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked a little over two years at a casino for the employer, an Indian Tribe. Her last day of work was September 29, 2008 (week 40). She was discharged by the employer on September 30, 2008 (week 40).

The issue to be decided in this case is whether the employee's discharge was for misconduct connected with her employment.

The employer has a written drug testing policy in its employee handbook and the employee received a copy of the employee handbook. The drug testing policy provides that a worker testing positive for drugs more than once during a five year period shall be terminated from employment.

The employee admitted using marijuana prior to be tested in December of 2006. The employee also admitted using marijuana prior to being tested in September of 2008. The commission has previously found that a policy that provides for discharge upon a positive drug test prohibits off duty use, and admitted use of a prohibited substance constitutes misconduct. Bartosh v. Motion Industries, Inc., UI Dec. Hearing No. 02201209EC (LIRC Sep. 18, 2002).

The commission therefore finds that in week 40 of 2008 the employee was discharged from her employment and for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $1,752.00 for weeks 41 through 46 of 2008, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived. Wis. Stat. § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), departmental error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.

The employer uses hair sample testing. The ALJ found that the department was in error in not considering the positive test results solely on the basis of the sample being testing being a hair sample. However, neither the department nor the commission accepts such hair testing. Tabaska v. John Deere Shared Services, Inc., UI Dec. Hearing No. 06600803MW (LIRC Jan. 26, 2007). The commission agrees with the department that the department did not err. It followed its established policy which the commission has endorsed. Further, in the discharge questionnaire the employee was asked whether she used alcohol or controlled substances prior to or while at work and the employee responded "No."

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

DECISION

The decision of the administrative law judge is reversed in part and affirmed in part. Accordingly, the employee is ineligible for benefits beginning in week 40 of 2008, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $1,752.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on October 14, 2008, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

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 employee 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 January 30, 2009
graveda . urr : 132 : 1 : MC 651.2  MC 652.9  BR 335.04

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

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.I. and other special benefit programs that are due to this state, another state or to the federal government.

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

cc: Attorney Carol Brown
Attorney Daniel J. La Rocque


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uploaded 2009/02/03