Petitioner Aaron Johnson seeks review of a Final Order concluding that he was discharged by respondent So Others Might Eat, Inc., (“SOME”) for gross misconduct.
I.
Petitioner began working for SOME in December 2006 as a security guard. On November 9, 2010, petitioner, along with other SOME employees on his shift, were tested for drugs because a bag of marijuana was found on the premises the day before. Petitioner tested positive for marijuana, the results were confirmed two days later by an independent laboratory, and he was terminated on November 15, 2010.
A claims examiner denied petitioner’s claim for unemployment compensation benefits and he appealed the determination to an Administrative Law Judge (“ALJ”). At an evidentiary hearing, SOME’s Human Resources Director, Shannon Leftwich, explained that petitioner was discharged for “positive drug tests, and not for possession of marijuana on [SOME’s] property.” Additionally, SOME submitted into evidence a copy of its workplace drug policy, which prohibits drug use
II.
Petitioner contends his conduct did not amount to gross misconduct. We agree. When reviewing a decision of the OAH, we look to determine whether “(1) [the ALJ] made findings of fact on each materially contested issue of fact, (2) substantial evidence supports each finding, and (3) [the ALJ’s] conclusions flow rationally from its findings of fact.” Badawi v. Hawk One See., Inc.,
The unemployment compensation scheme was “designed to protect employees against economic dependency caused by temporary unemployment and to reduce the need for other welfare programs.” The Wash. Times v. District of Columbia Dep’t of Emp’t Servs.,
Here, we conclude that SOME did not meet its burden to prove misconduct— gross or simple — because it failed to establish that petitioner’s conduct had any connection to his employment. The unemployment compensation statute disqualifies employees from benefits only if they engage in misconduct “occurring in the individual’s most recent work.” D.C.Code § 51 — 110(b)(1) & (2) (emphasis added); see also 7 DCMR § 312.1 (reiterating that “any individual discharged for misconduct occurring in his/her most recent work” shall be disqualified from receiving benefits). The language of the statute and its regulations does not require that the misconduct occur at work, see District of Columbia Dep’t of Mental Health v. Hayes,
Here, there was no nexus between petitioner’s conduct — off-premises drug use — and his employment. Our decision in Hayes is instructive on this point. In Hayes the employee had been convicted of drug possession outside of work, and we noted that a drug conviction “constitute^] gross misconduct regardless of where the conduct occurred.” Id. However, the facts of the case indicated that the employee’s drug conviction rose to the level of disqualifying misconduct under the statute because the effects of his drug conviction on his employment were apparent, creating a nexus between his conduct and his employment. Hayes had a history of poor work performance due to his substance abuse and his employer was concerned that he “would not be a proper role model for patients trying to recover.” Id. at 256-57. Also, as a result of the conviction, he missed approximately two months of work. Id. at 259. Hayes’ drug conviction had palpable effects on his employment. Such is not the case here, where SOME did not allege any discernible effect on its business or nexus between petitioner’s off-duty
III.
Therefore, due to the lack nexus establishing that petitioner engaged in gross or simple misconduct, we conclude that petitioner’s act did not amount to disqualifying misconduct under D.C.Code § 51 — 110(b)(1) & (2). Accordingly, we reverse and remand to the OAH with instructions to enter an order granting petitioner unemployment compensation benefits.
So ordered.
Notes
. See D.C.Code § 51-110(b)(1) (2001) and 7 DCMR § 312.3 (1986).
. Other employees whose test results were positive were treated in the same manner: they were suspended when the initial results returned positive and terminated after the positive test results were confirmed by an independent laboratory. However, one of these employees, John Carrington, was granted unemployment compensation benefits, despite the fact that the circumstances of his termination were virtually the same as petitioner's. See Carrington v. So Others Might Eat, Inc., No. 2011-DOES-182 (D.C. OAH June 10, 2011).
. The relevant policy provision states: “SOME’s policy prohibits the following: ... (5) illegal possession, use, manufacture, distribution, dispensation or sale of controlled substances off SOME's premises that adversely affects the individual’s work performance, his own or others’ safety at work.” (Emphasis added.)
. In Hayes, we explained that:
[N]othing in the language of the statute says that misconduct that disqualifies one from obtaining unemployment benefits must take place at work. The question, rather, is whether the employee was fired for "an act which deliberately or willfully violates the employer’s rules, deliberately or willfully threatens or violates the employer’s interests, shows a repeated disregard for the employee’s obligation to the employer, or disregards standards of behavior which an employer has a right to expect of its employee.” 7 DCMR § 312.3. To be sure, acts that take place outside of work often will not meet this standard. But nothing in law or logic says that acts that occur outside of work can never constitute gross misconduct.
Hayes, supra,