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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

“Misconduct” in Employment Cases

Failing to show up at work can be fatal to an employee’s job stability and entitlement to unemployment compensation benefits, as well.  A pair of recent concurrent rulings of the Minnesota Court of Appeals reflect the obstacles that discharged employees face in obtaining these benefits.  In Luhman v. Red Wing Shoe Co., 2015 WL 134211 (Minn. Ct. App. Jan. 12, 2015) (unpublished), the court upheld denial of benefits by the agency that oversees the unemployment compensation system in Minnesota for an employee whose absences due to incarceration for DUI exceeded his employer’s “no-fault” points system attendance policy.  Similarly, a frequently absent employee, who also was often late to work, lost her claim in Crosser v. McAlpin Agency, Inc., 2015 WL 134155 (Minn. Ct. App. Jan. 12, 2015) (unpublished).  The two cases fall within a pattern of appellate court rulings over the years holding that absenteeism or tardiness constitutes disqualifying “misconduct” under Minn. Stat. §286.095, subd. 6(a).  E.g. Cunningham v. Wal-Mart Assocs., Inc., 809 N.W.2d 231 (Minn. Ct. App. 2011); Hanson v. Crestliner, Inc., 772 N.W.2d 539 (Min. Ct. App. 2009).

Terminated employees and their advocates seeking unemployment benefits should emphasize the applicant’s efforts at timely attendance, as well as point to any legitimate health reasons including chemical dependency, that may excuse excessive absenteeism or tardiness under Minn. Stat. § 268.095, subd. 6(b).  Employers and their attorneys may point to the reasonableness of the employer, prior warnings to aberrant employees, and the negative impact of the absences or tardiness.

Marshall H. Tanick

Hellmuth & Johnson, PLLC

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