Gaylord v. Wal-Mart Associates, Inc.

Citations: 193 S.W.3d 807; 2006 Mo. App. LEXIS 859; 2006 WL 1675334Docket: No. WD 65939

Court: Missouri Court of Appeals; June 20, 2006; Missouri; State Appellate Court

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The Division of Employment Security appeals a decision from the Labor and Industrial Relations Commission that awarded unemployment compensation to Kevin Gaylord, who was terminated from Wal-Mart Associates, Inc. for alleged misconduct. The Division argues that the Commission incorrectly determined that Gaylord did not engage in misconduct, citing his admission to being at work with a detectable amount of marijuana, violating Wal-Mart's drug policy. Gaylord worked at Wal-Mart from December 2003 until his discharge on January 18, 2005, after he cut his finger at work. His supervisor offered him the option of seeing a doctor or going home, where he would be required to take a drug test upon return. Gaylord opted to go home, believing a drug test would occur the next day. When he returned, Wal-Mart's manager informed him that he was being discharged for gross misconduct due to his admission of prior marijuana use and refusal to take a drug test post-accident. Gaylord contested the discharge, leading to an appeal process where an initial deputy ruled against him, but the appeals tribunal found he was not discharged for misconduct, a decision later affirmed by the Commission. The Division claims the Commission erred, asserting that Gaylord's admission constituted misconduct under RSMo 288.045.1, which specifies that being at work with detectable substances in violation of company policy is misconduct. However, the Division acknowledges that merely having a detectable substance is not the sole criterion for misconduct under the statute.

Subsection 1 of 288.045 mandates that an employee’s conduct must violate the employer’s workplace policy for the statute to apply. Subsection 4 specifies that the claimant must be notified of the employer’s alcohol and controlled substance policy through conspicuous posting, inclusion in a personnel handbook, or a collective bargaining agreement. The policy must explicitly state that a positive drug test is deemed misconduct that could lead to suspension or termination. Wal-Mart’s manager testified that the company had a policy of terminating employees who refused drug tests but failed to confirm that a positive test would be classified as misconduct under 288.045. Additionally, Wal-Mart did not provide evidence that Gaylord was informed of the drug policy as required. Section 288.045.11 clarifies that the statute does not protect employers who do not comply with the necessary regulations for establishing misconduct. Wal-Mart had the burden to demonstrate that Gaylord was discharged for work-related misconduct, which it did not accomplish.

The division also argued that, even if 288.045 was not met, Gaylord's actions constituted misconduct under 288.050.2, which disqualifies claimants discharged for misconduct from receiving benefits. "Misconduct" is defined in section 288.030.1(24) as willful disregard of employer interests or deliberate rule violations. The division claimed that Gaylord's avoidance of a drug test after the accident disregarded workplace safety and thus amounted to misconduct. Despite the lack of a written drug policy at the hearing, evidence suggested Wal-Mart required employees to take a drug test within 24 hours of an accident. Gaylord did not refuse the test; he was given the option to consult a doctor or go home, with the understanding that he needed to submit to a drug test upon returning to work the next day.

Gaylord was willing to take a drug test within 24 hours of his accident, but Wal-Mart discharged him without requesting such a test. Consequently, Gaylord did not breach Wal-Mart’s policy, and his actions were not deemed misconduct related to his employment. Wal-Mart's claim that Gaylord’s prior marijuana use constituted a policy violation was unconvincing, especially since it did not present its drug policy during the hearing. The record does not support the assertion that Gaylord admitted to knowledge of a drug prohibition policy. The commission's decision to affirm Gaylord's qualification for unemployment compensation stands because Wal-Mart failed to demonstrate that he was discharged for work-related misconduct. The judges concurred, and since Wal-Mart did not prove misconduct under Section 288.050.2, there was no need to consider the additional argument regarding the requirement of showing impairment of work performance.