Labor Law

Editor:
Bryan Cavanaugh, Esquire

The employee was properly denied unemployment benefits due to misconduct connected with work because his refusal to take a random drug test was a willful violation of the employer’s policy. Zych v. Wilson Waste Systems, LLC, et al., No. 99204 (Mo. App. E.D., June 28, 2013), Dowd, Jr., P.J.

Zych was randomly selected for a drug test, according to Wilson’s policies. He called Wilson’s vice-president and told him he refused to test the drug test because he would fail it. The vice-president told Zych if he refused to take the drug test, he would be fired. Zych refused to take the test and was fired. During his unemployment claim, Zych contended for the first time that he refused the test because he had a torn meniscus and had been prescribed hydrocodone for pain and did not want a failed drug test on his record. The appeals tribunal noted Zych did not attempt to explain why he believed he would not pass and merely refused to comply with Wilson’s reasonable demand regarding a drug testing policy of which he was aware. Thus, the appeals tribunal found Zych’s refusal was a willful and intentional act contrary to Wilson’s interests, thus qualifying as misconduct rather than a mere act of poor judgment. The appeals tribunal found Zych was disqualified from receiving unemployment benefits because he was discharged for misconduct connected with work. The deputy, the referee, and the commission all found Zych had been terminated for misconduct connected with work because he refused to take the random drug test. Zych appealed to the court of appeals.

Held: Affirmed.
Zych argued to the court of appeals he had been confused about the drug testing policy and did not willfully violate it. The court of appeals, however, explained that in every contract of employment, it is implied that the employee will obey the lawful and reasonable rules, orders, and instructions of the employer, and that a single instance of intentional disobedience of an employer’s directive can constitute misconduct. In this case, Zych was aware of Wilson’s drug test policy, yet he refused the drug test. Zych also testified he knew he could be fired for refusing the test. Further, at the time, Zych did not explain to Wilson why he believed he would not pass the test. Later, at the hearing, Zych explained he had been taking prescription hydrocodone, but Wilson had no way of knowing that at the time Zych was discharged. Thus, the commission’s determination that Zych willfully violated Wilson’s rule was supported by competent and substantial evidence.


Substantial evidence supported the commission’s finding that Lombardo was terminated for misconduct connected with work because of a racist comment she made to a customer. Lombardo v. Brandt Investments, LLC, et al, No. 98967 (Mo. App. E.D., June 18, 2013), Sullivan, J.

Lombardo worked at an Ace Hardware store in St. Louis County. In February 2012, Ace’s corporate headquarters received a customer’s complaint that described Lombardo and claimed she said “she lived in St. Peters and she liked it. It wasn’t as congested and there aren’t as many blacks or foreigners.” Ace performed an investigation, and Lombardo denied making that statement but admitted saying St. Peters was “not as dark of an area.” The employer understood that to be a derogatory comment about African-Americans and terminated Lombardo’s employment. Lombardo filed for unemployment benefits. The deputy, the referee, and the commission all agreed she had been terminated for misconduct connected with work. Lombardo appealed to the court of appeals.

Held: Affirmed.
Lombardo had testified during the unemployment claim that her “not as dark” remark concerned the lighting near her home in comparison to the poor lighting in the rest of the subdivision. Employee testified further that she provided this explanation to the employer during the investigation. The employer denied she provided him such an explanation. The commission rejected this explanation as incredible. The court of appeals was bound by the commission’s factual determination that Lombardo had in fact made a racist comment. Such a comment was against the employer’s interests and policies. As such, the commission’s determination was supported by substantial and competent evidence.