{ "id": 6137229, "name": "Mike P. CUSACK v. Artee WILLIAMS, Director, Department of Workforce Services and University of Central Arkansas", "name_abbreviation": "Cusack v. Williams", "decision_date": "2008-06-25", "docket_number": "E 08-20", "first_page": "60", "last_page": "63", "citations": [ { "type": "official", "cite": "103 Ark. App. 60" }, { "type": "parallel", "cite": "286 S.W.3d 180" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "52 Ark. App. 126", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138437 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "130" }, { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/ark-app/52/0126-01" ] }, { "cite": "9 Ark. App. 59", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137142 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark-app/9/0059-01" ] }, { "cite": "270 Ark. 190", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709282 ], "weight": 2, "pin_cites": [ { "page": "194" }, { "page": "910" } ], "opinion_index": 0, "case_paths": [ "/ark/270/0190-01" ] }, { "cite": "88 Ark. App. 57", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136959 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "64" }, { "page": "804" } ], "opinion_index": 0, "case_paths": [ "/ark-app/88/0057-01" ] }, { "cite": "50 Ark. App. 77", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137446 ], "weight": 2, "year": 1995, "opinion_index": 1, "case_paths": [ "/ark-app/50/0077-01" ] }, { "cite": "31 Ark. App. 81", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137496 ], "weight": 2, "year": 1990, "opinion_index": 1, "case_paths": [ "/ark-app/31/0081-01" ] }, { "cite": "52 Ark. App. 126", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138437 ], "weight": 2, "year": 1996, "opinion_index": 1, "case_paths": [ "/ark-app/52/0126-01" ] } ], "analysis": { "cardinality": 428, "char_count": 7141, "ocr_confidence": 0.765, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.17486251128926822 }, "sha256": "a5c3eb4d5e15a39ef95a1632958aadb5216b130d24fa749bfdc7df295c6c3912", "simhash": "1:dd86864621c1ced8", "word_count": 1144 }, "last_updated": "2023-07-14T22:49:33.837419+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Pittman, C.J., Bird, and Vaught, JJ., agree.", "Hart and Robbins, JJ., dissent.", "Hart, J., joins." ], "parties": [ "Mike P. CUSACK v. Artee WILLIAMS, Director, Department of Workforce Services and University of Central Arkansas" ], "opinions": [ { "text": "Karen R. Baker, Judge.\nAppellee University of Central Arkansas discharged appellant Mike P. Cusack from his position as a shuttle bus driver after it received notice that Mr. Cusack tested positive for marijuana on a drug screening test performed pursuant to the Department of Transportation\u2019s regulation of individuals maintaining a commercial driver\u2019s license. The Board of Review found that the employee\u2019s failing the drug test for the Department of Transportation qualification demonstrated deliberate disregard of the employer\u2019s interest. Whether Mr. Cusack\u2019s actions constituted misconduct in connection with his work was a fact question for the Board to answer. Terravista Landscape v. Williams, 88 Ark. App. 57, 64, 194 S.W.3d 800, 804 (2004). The question for this court is whether substantial evidence supports the Board\u2019s decision. Id. We affirm.\nAppellant was denied unemployment benefits upon the finding that he was discharged for misconduct. The dissent posits that although appellant had signed the University\u2019s Drug Free Policy, UCA had no written policy separately addressing the drug testing and that off-duty drug use cannot be the basis for misconduct because it impermissibly extends an employer\u2019s control of an employee\u2019s actions outside the workplace.\nThe misconduct in this case was not the off-duty use of marijuana. The misconduct was Mr. Cusack arriving at the workplace with marijuana in his system to drive the shuttle bus and transport the residents of the retirement center. Unemployment benefits are intended to benefit employees who lose their jobs through no fault or voluntary decision of their own. They are not intended to penalize employers or reward employees, but to promote the general welfare of the State. Wacaster v. Daniels, 270 Ark. 190, 194, 603 S.W.2d 907, 910 (Ark. App.1980). Mr. Cusack voluntarily arrived at the workplace with marijuana in his system to drive the bus and transport the residents. However, even applying the misconduct test purported to be applicable by the dissent in this case, we must affirm:\n[I]n Feagin v. Everett, 9 Ark. App. 59, 652 S.W.2d 839 (1983)... we recognized that misconduct in connection with the work can occur while an employee is off duty. There, a teacher was fired after criminal charges had been filed against her for the possession of a controlled substance, which had been found in her home. In affirming the Board\u2019s finding of misconduct, we adopted a three-part test for determining whether an employee\u2019s offiduty conduct will be considered misconduct in connection with the work. First, there must exist a nexus between the employee\u2019s work and his or her off-duty activities. Second, it must be shown that the off-duty activities resulted in harm to the employer\u2019s interests. And third, the off-duty conduct must be violative of some code of behavior contracted between the employer and employee, and the employee\u2019s conduct must be done with the intent or knowledge that the employer\u2019s interests would suffer.\nRucker v. Price, 52 Ark. App. 126, 130, 915 S.W.2d 315, 317 (1996).\nThe discussions by the majority and dissent in the Rucker case provide a general policy summary behind the prohibition of off-duty drug use and the relationship to our unemployment determinations. In the case before us, appellant was required by UCA to submit to a drug test prior to his employment and signed a Drug Free Policy for the workplace. In addition, a specific contractual requirement for him to maintain his job as a shuttle bus driver was that he continue to be licensed as a commercial driver. A driver with a commercial driver\u2019s license is subject to the Department of Transportation\u2019s rules and regulations that specifically require that he be subject to random drug testing with the results being reported directly to his employer. See generally 49 C.F.R. pts. 350-399 (2008). Appellant knew that his employer\u2019s interests would suffer from his reporting to work with marijuana in his system when his job was to transport residents of the retirement center by driving a bus. We hold on these facts that substantial evidence supports the Board\u2019s decision.\nAffirmed.\nPittman, C.J., Bird, and Vaught, JJ., agree.\nHart and Robbins, JJ., dissent.", "type": "majority", "author": "Karen R. Baker, Judge." }, { "text": "John B. Robbins, Judge,\ndissenting. Mr. Cusack was informed that he was discharged for testing positive for illegal drugs and that the drug screen was conducted in accordance with the employer\u2019s written drug policy. However, it is undisputed that the employer\u2019s drug-free workplace policy did not mention drug testing or contain a prohibition against a positive drug screen. Had the policy contained such a provision, I would agree that Mr. Cusack\u2019s conduct would have constituted misconduct. Because it did not, I would reverse the Board\u2019s decision and award appropriate benefits.\nIn Grace Drilling Co. v. Director of Labor, 31 Ark. App. 81, 790 S.W.2d 907 (1990), we held that where the claimant\u2019s positive test result was sufficient to satisfy that portion of the company\u2019s safety policy prohibiting any detectable level of drugs in the body, this constituted misconduct that disqualified him from benefits, as it represented a deliberate violation of the employer\u2019s rules and willful and wanton disregard of the standard of behavior that the employer had a right to expect of its employee. In George\u2019s Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995), we reversed an award of unemployment benefits where the claimant tested positive for illegal drugs, noting that negative drug test results were a condition of the claimant\u2019s employment to which he agreed. In that case, we held that the employer\u2019s drug policy, which was implemented to provide safety and production, was reasonable. And in Rucker v. Director, 52 Ark. App. 126, 915 S.W.2d 315 (1996), we affirmed the denial of benefits where the claimant had agreed to be bound by his employer\u2019s policy and thus was aware of its terms and the ramifications for failing a test.\nThe distinguishing factor between the above cases is that University of Central Arkansas did not have a written policy that covered drug testing. Such a provision would doubtless have been reasonable in light of Mr. Cusack\u2019s employment as a driver responsible for the safety of others. But these simply are not the facts of this case. Furthermore, there is nothing in the record indicating that Mr. Cusack lost his commercial driver\u2019s license as a result of the positive test, and there was no evidence that he was impaired during his employment hours. In the absence of a written policy supporting the employer\u2019s decision to terminate appellant\u2019s employment, I would hold that the Board erred in finding that appellant\u2019s actions constituted misconduct in connection with his work.\nI respectfully dissent.\nHart, J., joins.", "type": "dissent", "author": "John B. Robbins, Judge," } ], "attorneys": [ "Appellant, pro se.", "Allan Pruitt, for appellee Department of Workforce Services; and Thomas C. Courtway, for appellee University of Central Arkansas." ], "corrections": "", "head_matter": "Mike P. CUSACK v. Artee WILLIAMS, Director, Department of Workforce Services and University of Central Arkansas\nE 08-20\n286 S.W.3d 180\nCourt of Appeals of Arkansas\nOpinion delivered June 25, 2008\nAppellant, pro se.\nAllan Pruitt, for appellee Department of Workforce Services; and Thomas C. Courtway, for appellee University of Central Arkansas." }, "file_name": "0060-01", "first_page_order": 88, "last_page_order": 91 }