Perspectives: Unemployment down, but cases still arise

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“The hardest work in the world is being out of work.”

—Civil Rights Leader Whitney M. Young, quoted in the “Powerbroker” (2013)

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“I have a friend who’s collecting unemployment insurance. The guy has never worked so hard in his life to keep this going.”

—Comedian Jerry Seinfeld, “Is This Anything?” p. 61 (2020)

Unemployment rates have descended to below pre-pandemic levels, with the figure holding steady at 3.6% since this spring and at a historically record low of 2% in Minnesota.

Those figures, however, do not tell the whole tale; they exclude the many individuals who, in large part due to COVID, have voluntary left employment and are not seeking other work. Nonetheless, even accounting for those individuals, unemployment has definitely shrunk in this country and the state in recent months.

Meanwhile, the latest monthly jobs market report from the Department of Labor reflected a healthy growth of 372,000 new jobs, accentuating the reported existence of about two available jobs for each jobless individual.

But applications for unemployment benefits nationally rose for the week ending July 9 by 9,000 to 244,000, up from the previous week’s 235,000, the largest increase in nearly eight months, the Labor Department reported Thursday. The total number of Americans collecting jobless benefits for the week ending July 2 fell by 41,000 from the previous week, to 1,331,000. That figure has hovered near 50-year lows for months.

But the relative paucity of unemployment does not necessarily correlate with the evaporation of cases brought by jobless Minnesotans challenging denial of unemployment benefits. Five recent cases, all decided concurrently by the Minnesota Court of Appeals, on a single day this spring, reflect the variety of those proceedings. They included a pair of “quit” cases; a denial due to “misconduct”; a dispute over reduction of unemployment benefits; and a clash over timeliness of an appeal. As is usual, most of the claimants lost their cases before the appellate courts, a fate that befalls about 90% or more of these aspirants. Four of the quintet suffered setbacks, but one managed to obtain a reversal and remand.

Resignation rulings

A pair of employees who resigned their jobs lost their appeals of adverse determinations by unemployment law judges (ULJ) with the Department of Employment & Economic Development (DEED), the agency overseeing the unemployment compensation system in Minnesota.

A hair stylist who took time off to help family members who were experiencing personal problems initially received unemployment benefits, but then refused to return to work full time because of ongoing family issues, which prompting denial of unemployment compensation benefits by a ULJ, which was affirmed by the appellate court in McDuff v. Half Moon Clippers, 2022 WL 1531364 (Minn. Ct. App. May 16, 2022) (unpublished).

An employee’s claim that he quit for a “good reason caused by the employer,” pursuant to Minn. Stat § 268.095, subd. 1(1), was rejected because the employee’s “one reason” for resigning, his perception that [his boss] was harassing him, was not supported in the record. Questions by his boss about when the employee was willing to return to full-time work and whether he had been legitimately collecting unemployment benefits while he was off work (which formed the basis for the employee’s claim) was not the kind of action that “affected the terms and condition of [his] employment.” Furthermore, the questioning “in itself, [was] not adverse to [the] employee.” That type of inquiry, the courts felt, “would not have compelled [an] average employee to quit.”

Therefore, the employee was correctly denied his unemployment compensation benefits, and his request for an additional hearing was also properly denied. Because it was in the ULJ’s discretion to reject the request.

An employee for a large grocery distribution company, resigned his job because he felt it did not fit his schedule and day care needs, without requesting any accommodation. A ULJ’s denial of a request for unemployment compensation benefits was affirmed by the Court of Appeals in Toenjes v. SpartanNash, Associates, LLC, 2022 WL 1531672 (Minn. Ct. App. May 16, 2022) (unpublished). Although not cited by the employee, the tribunal reviewed three statutory exceptions of resigning employees who obtained unemployment compensation benefits and found that none of them applied. The “unsuitable employment” provision, Minn. Stat. § 268.095, subd. 1 (3), “does not apply here” because he did not quit his job within the first 30 days of employment, as is “required to invoke” that clause. Nor is the notification of lay-off provision under Minn. Stat. § 268.095, subd 1(6) applicable because the employee was never notified that he “would be laid off,” and he never had any negative performance reviews.

The “child care” provision under § 268.095, subd. 1 (a) for resigning employees was inapplicable because the statute requires “loss of child care,” and in this case, the employee did not “lose” child care, but simply quit to take care of the children at home. Further, he did not comply with the statutory request for an “accommodation” from the employer. Since none of these exceptions applied, the employee was properly denied unemployment benefits.

‘Misconduct’ matter

Another grocery employee who was terminated for “improper behavior” lost his bid for unemployment compensation benefits in Kuller v. Super Valu, Inc., 2022 WL 1533906 (Minn. Ct. App. May 16, 2022) (unpublished).

The employee was fired after working or about a year because customers and co-workers complained about inappropriate jokes, harassment, and conduct that offended customers. The ULJ’s denial of benefits based upon six separate incidents, warranted denial of unemployment compensation for the employee. The employer’s testimony was consistent of the “logical sequence of events culminating in [the] discharge,” while the employee’s testimony was “not credible.” The employee also raised nine issues in the request for reconsideration, all of which were deemed unsupportable and “rests on a misunderstanding of the applicable law and procedures” followed by the ULJ. The ULJ did properly consider the “bulk of the post decision request, and many of them misstate the applicable law and administrative procedures,” warranting denial of a request for reconsideration and request a rehearing.

PERSPECTIVES POINTERS

What constitutes “good reason” to resign under §268.095, subd. 3(a)

• Action by the employer is “directly related” to the job.
• The action is adverse to the employee.
• Would compel an “average, reasonable” employee to quit the job.

Deductible decision

An employee whose unemployment compensation benefits were nullified by the receipt of Social Security retirement benefits, lost her challenge in Powers-Potter v. Data Recognition Corp., 2022 WL 1532131 (Minn. Ct. App. May 16, 2022) (unpublished). The employee had been seasonably employed as a test scorer, terminated during the pandemic and then applied. She had been receiving Social Security survivor benefits after the death of her husband, but after her job was terminated, she decided to switch from survivor benefits to old-age retirement benefits. Minn. Stat. § 268.085, subd. 4, which was in effect at the time but has since been repealed as of this July, provides that one-half of an individual’s old age retirement benefits “must be deducted … from unemployment benefit amount” due to the employee. One-half of the employee’s retirement benefits, which was nearly $300, exceeded the total amount of her weekly unemployment benefits, which were about $265. Therefore, she was not entitled to any benefits under the statute, which creates a “bright line rule.”

The employee’s claim of substantial compliance, which is permissible under one of the governor’s executive orders during the pandemic, emergency executive order no. 20-05, was inapplicable because the employee “failed to preserve the issue for appeal and [did not] adequately brief the issue.” While pro se parties, like this claimant, are sometimes entitled to “some accommodations,” that issue could not be raised since it was not presented to the unemployment law judge in the underlying proceeding. Further, the employee did not explain “how the application of this substantial compliance standard” would affect the outcome of this case.

Remand reversal

But one of the concurrent claimants did manage to succeed, achieving reversal of denial of benefits and a remand in Victoria v. Long Prairie Packing, 2022 WL 1531545 (Minn. Ct. App. May 16, 2022) (unpublished). The employee failed to timely file an appeal of an initial determination of ineligibility, which is required within 20 days of the decision. The employee was 13 days late, which he attributed to his difficulty with the English language, and his problem of finding a translator.

Ordinarily, his claim would have been denied under the court’s strict compliance with statutory deadlines. However, the governor’s executive order, suspending various timelines, warranted consideration of his appeal under the “substantial compliance” doctrine recognized in In Re Murack, 957 N.W.2d 124 (Minn. Ct. App. 2021).

However, the ULJ failed to properly consider the substantial compliance issue and applied the wrong standard to it. Therefore, the employee was entitled to a remand and rehearing on that issue to demine whether he had, under the circumstances, satisfied the “substantial compliance” standard of compliance doctrine.

These five cases show that obtaining unemployment compensation in contested cases in Minnesota can be a demanding, often unsuccessful challenge, a task that’s no laughing matter.

Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.

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