Michael J. Waldvogel Trucking, LLC v. State Labor & Indus. Review Comm'n
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Employee was employed by Employer as a driver. Due to lack of work, Employee was laid off indefinitely. Three months later, Employer recalled Employee. Employee was required to submit to a pre-employment drug test, to which he tested positive. Subsequently, Employer discharged Employee. The Labor and Industry Review Commission determined that Employee was eligible for unemployment benefits after rejecting Employer's argument that Employee was discharged for misconduct connected with his work under Wis. Stat. 108.04(5). The court of appeals reversed. The Supreme Court granted review but dismissed it as improvidently granted, concluding that a decision by the Court in the instant case would not develop or clarify the law, as a Wis. Stat. 108.04(8)(b), enacted while the case was proceeding, clarified that an employee is ineligible for benefits if the employer withdraws or fails to extend an offer of work due to a positive test result for illegal drugs.
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2012 WI 28 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2011AP329-FT Michael J. Waldvogel Trucking, LLC, Petitioner-Respondent-Petitioner, v. State of Wisconsin Labor and Industry Review Commission, Respondent-Appellant, Daniel M. Berceau, Respondent. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 336 Wis. 2d 477, 801 N.W. 2d 350 (Ct. App. 2011 Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: March 21, 2012 March 6, 2012 Circuit Langlade Fred W. Kawalski ROGGENSACK, J., dissents. ATTORNEYS: For the petitioner-respondent-petitioner there were briefs by John B. Rhode and Sommer, Olk, Schroeder & Payant LLP, Antigo, and oral argument by John B. Rhode. For the respondent-appellant, Labor and Industry Review Commission, there was a brief and oral argument by William S. Sample. 2012 WI 28 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2011AP329-FT (L.C. No. 2010CV111) STATE OF WISCONSIN : IN SUPREME COURT Michael J. Waldvogel Trucking, LLC, Petitioner-Respondent-Petitioner, FILED v. State of Wisconsin Labor and Industry Review Commission, MAR 21, 2012 Diane M. Fremgen Clerk of Supreme Court Respondent-Appellant, Daniel M. Berceau, Respondent. REVIEW of a decision of the Court of Appeals. Dismissed as improvidently granted. ¶1 PER CURIAM. On December 1, 2011, we granted Michael J. Waldvogel Trucking, LLC's (Waldvogel Trucking) petition for review of an unpublished decision of the court of appeals, Michael J. Waldvogel Trucking, LLC v. LIRC, No. 2011AP329-FT, unpublished slip op. (Wis. Ct. App. June 28, 2011), that reversed an order by the Langlade County Circuit Court1 reversing 1 The Honorable Fred W. Kawalski presided. No. 2011AP329-FT the Labor and Industry Review Commission's (LIRC) determination that Daniel Berceau (Berceau) is eligible for unemployment benefits. ¶2 and After reviewing the record and the parties' briefs, after hearing oral argument, we conclude that Waldvogel Trucking's petition for review was improvidently granted. ¶3 For purposes of explaining our decision, we briefly relate the following undisputed facts. Beginning in January 2008, Berceau was Trucking employed by Waldvogel as a dairy transport driver, a position that required Berceau to maintain a valid commercial driver's license. In May 2009, due to lack of work, Berceau was laid off indefinitely. however, on Berceau. August Pursuant 12, to 2009, both Three months later, Waldvogel federal law Trucking and recalled company policy, Berceau was required to submit to a pre-employment drug test. Berceau tested positive for marijuana metabolites. Consequently, on August 18, 2009, Waldvogel Trucking discharged Berceau. ¶4 Berceau filed for unemployment benefits. Rejecting Waldvogel Trucking's argument that Berceau was discharged for "misconduct connected with [his] work" under Wis. Stat. § 108.04(5) (2009-10),2 LIRC concluded that Berceau was eligible for unemployment benefits. 2 All subsequent references to the Wisconsin Statutes are to the 2009-10 version unless otherwise indicated. 2 No. ¶5 The circuit court disagreed, and 2011AP329-FT Berceau appealed. The court of appeals then reversed the order of the circuit court and remanded the cause for reinstatement of LIRC's decision. ¶6 Waldvogel Trucking petitioned this court for review, asking us to recalled answer a from an single question: indefinite lay-off, whether is an employee, eligible for unemployment benefits when he renders himself ineligible for his job by using illegal drugs. We granted Waldvogel Trucking's petition for review and heard oral argument on March 6, 2012. ¶7 Upon further reflection, however, we conclude that the petition for review was 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 . . . ." § 108.04(8)(b). On June 26, 2011, the legislature created 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. ¶8 Given the § 108.04(8)(b), the legislature's issue presented enactment by Waldvogel petition for review is not likely to recur. § (Rule) 809.62(1r)(c)3. of Wis. Stat. Trucking's See Wis. Stat. Because a decision by this court in 3 No. the instant case would not develop or clarify the 2011AP329-FT law, see § 809.62(1r)(c), we conclude that Waldvogel Trucking's petition for review was improvidently granted. ¶9 By the Court. The review of the decision of the court of appeals is dismissed as improvidently granted. ¶10 Justice PATIENCE DRAKE ROGGENSACK dissents. 4 No. 1 2011AP329-FT
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