Longmont Turkey Processors, Inc., Petitioner,
v.
The Industrial Claim
Appeals Office of the State of Colorado
and Ricardo Manriquez,
Respondents.
No. 88CA0458.
765 P.2d 1073
Colorado
Court of Appeals,
Div. II.
Nov. 17, 1988.
Daniel J. Collyar, Denver, for petitioner.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty.
Gen., Richard H. Forman, Sol. Gen., Curt Kriksciun, Asst. Atty.
Gen., Denver, for respondent The Indus. Claim Appeals Office.
No appearance for respondent Manriquez.
METZGER, Judge.
The focal issue in this case is whether an employee's consumption
of alcohol during a brief, paid, rest break on the employer's
premises constitutes misconduct occurring "on the job" warranting
denial of unemployment compensation benefits pursuant to Sec.
8-73-108(5)(e)(IX), C.R.S. (1986 Repl.Vol. 3B). The Industrial Claim
Appeals Office (Panel) awarded Ricardo Manriquez (claimant) full
benefits holding that, since claimant "was not performing services
for the employer at the time [he consumed the alcohol], he was not
'on the job.' " Asserting that the Panel's definition of "on the
job" constituted error as a matter of law, Longmont Turkey
Processors, Inc. (employer) seeks review. We set aside the order and
remand the cause for entry of an order denying benefits.
The Panel determined that: "claimant was discharged by the
employer after a security officer and his supervisor observed him
drinking beer during his afternoon break. The incident took place in
the car of claimant's girlfriend, which was parked on property
belonging to the employer.... [Asserting that he was eating
strawberries,] claimant denied that he was drinking beer."
Section 8-73-108(5)(e)(IX) provides that unemployment benefits
shall be denied if a separation from employment results from "[o]n-the-job
use of not medically prescribed intoxicating beverages or controlled
substances, as defined in Sec. 12-22-303(7), C.R.S....." No
statutory definition exists for "on-the-job," nor have any Colorado
appellate decisions addressed the issue for unemployment
compensation purposes. As well, the unemployment compensation
regulations contain no definition of "on the job."
However, in other employment contexts, rest breaks are included
in the definition of "on the job." The Colorado Division of Labor
regulations define the phrase "time worked" to include rest breaks:
"time worked means the time during which an employee is subject to
the control of an employer...." Department of Labor Regulations No.
3, 7 Code Colo.Reg. 1103-3. Injuries incurred during rest breaks are
generally considered to be within the course of employment for
workmen's compensation purposes. See Deterts v. Times Publishing
Co., 38 Colo.App. 48, 552 P.2d 1033 (1976); see generally 1 A.
Larson, Workmen's Compensation Law Secs. 15.50 & 21.71 (1985).
In Roache v. Industrial Commission, 729 P.2d 991 (Colo.App.1986),
we held that, for workmen's compensation purposes, one of the
primary issues for determination was whether the employee was in the
course of employment during the rest break period. The underlying
inquiry there concerned the existence and extent of the employer's
control. We noted that resolution of this question required
examination of several factors, including whether the break period
was of a duration so short as to support the inference that
employment activities were virtually uninterrupted, whether the
break was provided for by the employment contract, and whether it
was a paid interval. This analysis is helpful to a resolution of the
issue presented here.
The record shows that the claimant's drinking occurred on company
property during mid-afternoon on a regularly scheduled workday.
Claimant's rest break was limited to 15 minutes, and he was required
to perform his normal work tasks before and after the break.
Claimant was paid for the time he was on the break. It is undisputed
that claimant's alcohol consumption violated a company rule and that
claimant was aware of this rule.
Even though claimant was not performing services at the time of
the drinking incident, the timing of the rest break, its brevity and
location, and the fact of uninterrupted compensation evidence the
employer's control as contemplated both by the Department of Labor
Regulations and the analogous situation in Roache v. Industrial
Commission, supra. Thus, under these facts, we conclude that
claimant was "on the job" for purposes of the application of Sec.
8-73-108(5)(e)(IX). Thus, the Panel's award of benefits based on its
interpretation of the statute was an error of law, and we are not
bound by it. Colorado Division of Employment v. Parkview Hospital,
725 P.2d 787 (Colo.1986).
The Panel also awarded benefits based on Sec.
8-73-108(5)(e)(VIII), C.R.S. (1986 Repl.Vol. 3B), which concerns use
of intoxicating beverages or controlled substances off the job.
Since we have determined that claimant's consumption of alcohol
occurred on the job, that statutory subsection is inapplicable here,
and the Panel's award pursuant to this subsection was error.
The order is set aside and the cause is remanded with
instructions to deny claimant's request for benefits.
Smith and Marquez, JJ., concur.
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