Employment — unemployment compensation insurance; employee drug use

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Wisconsin Supreme Court

Civil

Employment — unemployment compensation insurance; employee drug use

Where an employer has petitioned this court for review to decide whether an employee, recalled from an indefinite lay-off, is eligible for unemployment benefits when he renders himself ineligible for his job by using illegal drugs, we dismiss that petition as improvidently granted.

“Wisconsin Stat. § 108.04(8)(a) provides, in relevant part, that an employee is ineligible for unemployment benefits for a stated period if the employee ‘fails, without good cause, to accept suitable work when offered . . . .’ On June 26, 2011, the legislature created § 108.04(8)(b). 2011 Wis. Act 32, § 2403t. Section 108.04(8)(b)1.b. clarifies that an employee’s failure to accept an offer of work under subsection (8)(a) includes ‘[t]he employer’s withdrawal of or failure to extend an offer of work due to a positive test result’ for illegal drugs. See id. Section 108.04(8)(b) went into effect on July 1, 2011. See id., §§ 9354(2q), 9400.

“Given the legislature’s enactment of Wis. Stat. § 108.04(8)(b), the issue presented by Waldvogel Trucking’s petition for review is not likely to recur. See Wis. Stat. § (Rule) 809.62(1r)(c)3. Because a decision by this court in the instant case would not develop or clarify the law, see § 809.62(1r)(c), we conclude that Waldvogel Trucking’s petition for review was improvidently granted.”

2011AP329-FT Waldvogel Trucking v. LIRC and Berceau,

Langlade County, Kawalski, J., per curiam, Roggensack, J., dissenting

Attorneys: For Petitioner: Rhode, John B., Antigo; For Respondent: Sample, William S., Madison