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


ANTHONY S JONES, Employe

SEEK INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99601034MW


On February 4, 1999, a deputy of the Department of Workforce Development issued an initial determination which found that in the week ending August 15, 1998, the employe was discharged but not for misconduct connected with his employment, within the meaning of Wis. Stat. 108.04 (5). The employer timely appealed and a hearing was held before an administrative law judge on February 22, 1999. On March 11, 1999, the administrative law judge issued an appeal tribunal decision which amended the week of issue to the week ending August 22, 1998, but otherwise affirmed the initial determination. Under authority of Wis. Stat. 108.09 (6), both the employer and the department have petitioned for commission review of the appeal tribunal decision.

Based on the applicable law and evidentiary record in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe accepted employment from the employer, a temporary help agency, beginning on April 21, 1998.  He worked as a general laborer for the employer's client, Rexnord, earning $7.75 per hour.  On Friday, August 14, 1998, he did not show up for work or call Rexnord, and on Monday, August 17, 1998, Rexnord telephoned the employer and indicated the employe's assignment was ended due to his failure to call or show up the previous Friday.  On Monday, August 17, 1998, the employe telephoned the employer and was informed that they would find another job for him within a week.  On Wednesday, August 19, 1998, the employer contacted the employe and offered him a position paying $7 per hour with another of the employer's clients.  The job was available immediately but was subject to a pre-employment drug test. The employe agreed to take the drug test.

On August 25, 1998, the employer was notified by telephone that the employe's drug test was positive for marijuana metabolites, and the next day, August 26, 1998 (week 35), the employer discharged the employe for violating its drug policy.

The administrative law judge found that an employment relationship ends as soon as a worker ceases performing services for pay for an employer. But this is not always true. As a general rule, a worker who is laid off on an indefinite basis no longer has an employment relationship with the employer. A. O. Smith Corporation v. DILHR, 88 Wis. 2d 262, 266, 276 N.W.2d 279 (1979). However, when there is credible evidence that at the time of layoff there exists an assurance, express or clearly implied by circumstances, that work will be resumed at an ascertainable time in the not too distant future, the employment relationship continues. Id. at 267. The employe in the case at hand was assured a new assignment within seven days of his layoff, and in fact, was offered such assignment within two days. Under the facts and circumstances of this case, it is clear that the employe was laid off for a definite period with a credible assurance that work would be resumed within an ascertainable time in the not too distant future. Thus, the employment relationship between the employe and the employer had not ended at the time the new assignment was offered to the employe on August 19, 1998. (1)

In Gary L. Bryant v. Cornwell Personnel Associates, Ltd., UI Hearing No. 93601651MW (LIRC November 10, 1993), the commission adopted a department policy which provides that a temporary help agency's assurance to an employe of reassignment within seven days after the end of a current assignment is sufficient to continue the employment relationship during that seven-day period. The commission also adopted the department's policy that if during the seven-day period the employer finds it cannot provide an assignment, but assures the employe that another assignment will be provided within another seven days, the employment relationship will be considered to have continued for that additional seven days. This policy was formally promulgated by the department in Unemployment Compensation Directive 95-06, dated December 27, 1994. The commission hereby rejects its prior adoption of these department policies and UCD 95-06 for three reasons.

First, the policies are designed to implement and interpret specific sections of Chapter 108 (notably Wis. Stat. 108.04 (7)(a)), they are of general application, and when utilized they have the effect of law. Accordingly, before they could affect a decision of the commission or of an appeal tribunal, they would have to be successfully adopted as Wisconsin Administrative Rules rather than as policies. See Wis. Stat. 227.10 (1) and Plumbing Apprenticeship Committee v. DILHR, 172 Wis. 2d 299, 321, 493 N.W.2d 744 (Court of Appeals 1992).

Second, the department's promulgation of these policies could lead to errors of fact. As promulgated, a department adjudicator might view them as having the effect of a presumption that any assurance by a temporary help employer of reassignment within seven days is credible. The facts and circumstances of each assurance of reassignment should be independently reviewed for credibility. Evidence of the number of suitable jobs the temporary help agency actually had available during the period in question, and the length of time the employe actually would have had to have waited before being offered one of those jobs would be of primary importance. Also of primary importance would be evidence of the employe's willingness and availability to accept a suitable reassignment.

Third, as previously detailed, the law has always provided that the employment relationship continues when there is credible assurance that work will be resumed at an ascertainable time in the not too distant future. The emphasis should be on the credibility of the assertion that the temporary help employer actually had a foreseeable reassignment for the laid-off employe, as well as on the employe's availability and willingness to accept such reassignment, rather than on the number of days the employe would have had to have waited for such reassignment.

When the employer was informed of the employe's positive test for marijuana metabolites, it discharged him for violation of its rule against testing positive for any controlled substance when accepting assignment to a "drug free" client. The employe also violated the employer's rule against use of a controlled substance on or off duty. (2) These rules are reasonable, (3) and the employe was informed of them verbally and in writing at the time he was hired. In addition, the written rule under which the employe was discharged informed him that a positive drug test would result in "disqualification from further assignment" for six months, at which time he would be eligible for reassignment provided he could successfully pass a "return to work" drug test. This constituted reasonable notice of the consequence of failing a pre-assignment drug test. That consequence was discharge with an opportunity for reapplication six months after the discharge. The employe's use of a controlled substance in violation of the employer's work rules, evinced a willful, intentional, and substantial disregard of the employer's interests, and constituted misconduct for unemployment compensation purposes.

The commission therefore finds that in week 35 of 1998, the employer discharged the employe for misconduct connected with his employment, within the meaning of Wis. Stat. 108.04 (5)

No overpayment of unemployment compensation benefits is due because the employe had satisfied the requalifying requirements as of his valid new claim week.

DECISION

The decision of the administrative law judge is reversed. Accordingly, in week 35 of 1998, the employe was discharged for misconduct connected with his employment, but no overpayment of unemployment compensation is due.

Dated and mailed July 6, 1999
jonesan.urr : 185 : 3  MC 651.1  MC 651.2 MC 651.4   SW 844  VL 1025

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


NOTE: The commission's reversal of the administrative law judge's decision was based on the applicable law as applied to undisputed facts.

cc:

GREGORY A FRIGO
DIRECTOR, BUREAU OF LEGAL AFFAIRS

TIMOTHY G COSTELLO
ATTORNEY AT LAW
KRUKOWSKI & COSTELLO SC


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Footnotes:

(1)( Back ) An individual who is laid off for a definite period, in circumstances where the employment relationship continues, is entitled to collect unemployment compensation benefits for such period pursuant to Wis. Stat. 108.02 (25), or pursuant to Wis. Stat. 108.05 (3) for a week of partial unemployment.

(2)( Back ) In a "NOTE" appended to his decision, the administrative law judge found the employer's rule against "Prohibited Conduct" was unreasonable. When read literally, this rule includes a ban against the "use" of alcohol off duty. Of course, such a rule would not be reasonable because it is legal to consume alcoholic beverages. But the commission infers that such language in the rule is merely the result of poor draftsmanship, and that the employer never intended to regulate an employe's consumption of alcohol off duty, as long as that employe does not report to work under the influence of alcohol. Regardless, it was the employer's rule against testing positive for a controlled substance before accepting an assignment which led to his discharge. This was certainly a reasonable rule and the employe was made fully aware of it.

(3)( Back ) See e.g., Adams v. Penda Corporation, UC Hearing No. 95-002425 (LIRC Aug. 18, 1995), in which the commission stated:

"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 ensure 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.)"

In Mr. Jones' case, the employer's rule requiring that an employe who accepts assignment to a client requiring "drug-free" employes be able to pass a drug test, was for a legitimate business purpose and was reasonable. ( Back )