This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat § 480A.08, subd. 3 (2000).






Jerome M. Olson,





Commissioner of Economic Security,



Filed August 7, 2001


Parker, Judge*


Department of Economic Security

File Nos. 552000, 553100


Jerome M. Olson, 1825 15th Avenue S.E., #8, St. Cloud, MN 56304 (pro se relator)


Kent E. Todd, Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent)


            Considered and decided by Shumaker, Presiding Judge, Amundson, Judge, and Parker, Judge.

U N P U B L I S H E D   O P I N I O N


Relator Jerome M. Olson appeals the commissioner’s representative’s determination that he was ineligible for reemployment compensation from March 6-30 and after April 3, 2000, because he was unavailable for work, restricted the hours and days that he would work, and sometimes worked more than 32 hours a week.  We affirm.


This court reviews the commissioner’s representative’s decision, not that of the reemployment compensation judge, even when that decision involves witness credibility.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The narrow standard of review for reemployment compensation decisions requires that factual findings be viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed.  White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).

To receive reemployment compensation benefits, an applicant must be able to work, available for employment, and actively seeking work.  Minn. Stat. § 268.085, subd. 1(2) (2000).  Although attending training classes does not automatically make an applicant unavailable for work, Hansen v. Continental Can Co., 301 Minn. 185, 187, 221 N.W.2d 670, 672 (1974), “[t]o be considered ‘available for employment,’ a student must be willing to quit school to accept employment that would conflict with school attendance.”  Minn. Stat. § 268.085, subd. 15(b) (2000).  The commissioner must make a factual determination in deciding whether an applicant is actively seeking work and is willing to stop attending school to take a job that conflicts with the applicant’s school schedule.  Goodman v. Minnesota Dep’t of Employment Servs., 312 Minn. 551, 553, 255 N.W.2d 222, 223 (1977).

The commissioner’s representative found that, because Olson was attending real-estate sales training and was not willing to forego that training to accept employment, Olson was unavailable for work within the meaning of Minn. Stat. § 268.085, subd. 1(2) during the March 6-30 and April 3-20 training classes.  The record supports this determination.  After being discharged from his restaurant-manager job, Olson decided to switch careers and enrolled in a real-estate sales training class.  During March 6-30, 2000, while he was receiving reemployment compensation benefits, Olson testified that he attended the class three to five days per week, eight hours a day.  After he finished the training course, he began working on a commission basis for Caldwell Banker Burnet Real Estate.  He testified that he attended Caldwell Banker’s training course from April 3 to April 20, 2000, again three to five days per week, eight hours a day. 

While Olson admits that he was “absolutely not” willing to discontinue his training courses to accept work that conflicted with his school schedule, he argues that it is unfair to deny him reemployment compensation benefits on that basis.  But, in its discretion, the legislature has required that, to be considered available for employment, reemployment compensation benefits applicants who are students must be willing to quit school to accept proffered employment.

The statute has a rational basis.  Facing limited resources, states may legitimately extend benefits only to those who are willing to maximize their employment potential by not restricting work hours by attending school.  See Shreve v. Department of Econ. Sec., 283 N.W.2d 506, 508 (Minn. 1979).

The record also supports the commissioner’s representative’s second determination that Olson limited his available work hours both while he was in training and after he completed his training courses on April 20.  An applicant who imposes restrictions on the hours of the day or the days of the week that he or she is willing to work is not available for employment.  Minn. Stat. § 268.085, subd. 15(d) (2000). 

While attending both training courses, Olson testified that he attempted to obtain employment working nights or weekends to accommodate his school schedule; upon completing his training courses, Olson tried to obtain temporary employment, but testified that he restricted his available work hours to two to three days per week, from early morning until afternoon so that he could pursue his real-estate sales efforts.

            Finally, applicants who work more than 32 hours per week in any kind of employment, including self-employment, regardless of pay, are not eligible for reemployment compensation benefits.  Minn. Stat. § 268.085, subd. 2(5) (2000).  Olson testified that beginning in July 2000 he worked more than 30 hours a week and up to 40 hours a week without pay at his real-estate sales job.  Additionally, Olson testified that he began working part-time, from between four and ten hours a day, six days a week at Regis Inventory Specialists in July 2000.  Thus, the record supports the commissioner’s representative’s determination that Olson was not eligible for benefits after July because he was employed more than 32 hours per week. 


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.