This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Tamala J. Chin,


Little Six, Inc.,

Commissioner of Economic Security,


Filed January 8, 2002


Crippen, Judge


Department of Economic Security

File No. 123501



Tamala J. Chin, 88 Valley Green Park, Jordan, MN 55352 (pro se relator)


Steven F. Olson, Todd M. Roen, BlueDog, Olson & Small, P.L.L.P., Suite 500, 5001 West 80th Street, Minneapolis, MN 55437 (for respondent Little Six, Inc.)


Philip B. Byrne, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)


            Considered and decided by Crippen, Presiding Judge, Willis, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N



Questioning the commissioner’s contrary decision in this certiorari appeal, relator argues that her failure to renew her gaming license does not constitute misconduct that disqualifies her from receiving unemployment benefits.  Because the record indicates so surely that relator knew she had to renew her license, such that her failure to do so shows a substantial lack of concern for her job, we affirm. 


Relator Tamala Chin was a six-year veteran casino cashier who was licensed for this work.  She was discharged after failing to make a timely application for renewal of her license.  The Department of Economic Security’s disqualification decision, first reversed by an unemployment law judge, was subsequently upheld by the commissioner’s representative.



Whether an employee’s acts constitute misconduct is a question of law on which reviewing courts remain free to exercise their independent judgment.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  A terminated employee shall not be disqualified from any benefits except when “the applicant was discharged because of employment misconduct.”  Minn. Stat. § 268.095, subd. 4(1) (2000).  “Employment misconduct” might be either “any intentional conduct * * * that disregards the standards of behavior” of the employer or “negligent or indifferent conduct * * * that demonstrates a substantial lack of concern for the employment.”  Id., subd. 6(a)(1)-(2) (2000).  “Misconduct” does not include “inefficiency, inadvertence, simple unsatisfactory conduct, poor performance because of inability or incapacity, or absence because of illness or injury with proper notice * * * .”  Id., subd. 6(b) (2000). 

When an employee is fired after losing his employment-required driver’s license because of a drunk driving conviction, the employee has committed disqualifying “misconduct” for purposes of the statute.  Markel v. City of Circle Pines, 479 N.W.2d 382, 385 (Minn. 1992).  Alternatively, when an employee loses an employment-required driver’s license due to off-duty speeding tickets and is thereafter fired, his behavior does not constitute “misconduct” under the statute.  Peterson v. Fred Vogt & Co., 495 N.W.2d 875, 879 (Minn. App. 1993); see also Swanson v. Columbia Transit Corp., 311 Minn. 538, 539-40, 248 N.W.2d 732, 733 (1976) (concluding that bus driver’s three on-duty accidents in 47 days, due to carelessness and excessive speed, did not constitute disqualifying misconduct); Eddins v. Chippewa Springs Corp., 388 N.W.2d 434, 436 (Minn. App. 1986) (finding strong inadvertence or negligence, but no disqualifying misconduct, when an employee received six traffic tickets over a two and one-half year period, including one during work, and was fired when insurer refused coverage).

The commissioner’s representative summarily relied on Markel in her decision, reasoning that

conduct resulting in the loss of a license necessary for the performance of normal job duties constitutes misconduct within the meaning of the Minnesota economic security law. 

But as subsequently acknowledged by the commissioner, Markel does not stand for the broad proposition stated in the commissioner’s representative’s order.[1]  To the contrary, Markel contrasted the misconduct of the relator in that case—a DWI conviction resulting in loss of license—with “mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances,” which are not misconduct.   479 N.W.2d at 384 (citing Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973)).  Markel’s drunk driving was misconduct because it “showed an intentional and substantial disregard of his duties and obligations to his employer.”  Id. at 385.  But Markel is no longer the only governing standard, as the legislature has stated that disqualifying “misconduct” might be either intentional misconduct or negligent conduct that shows a substantial lack of concern for the job.  See, e.g., Minn. Stat. § 268.095, subd. 6(a)(1)-(2) (2000).  Thus, the dispositive question—not directly addressed in the commissioner’s representative’s order—is whether relator’s negligent conduct demonstrated a substantial lack of concern for her job. 

            Stating its reasons for determining misconduct in this case, the commissioner’s representative observed that relator knew that she had to renew her gaming license 60 days before its expiration, as required by company policy, but forgot to do so.  The record, however, goes much further.  In particular, the record shows that (1) relator had received an October letter reminding her of the November 30 renewal deadline; (2) relator’s workplace contained postings explaining her employer’s expectation that she renew her license on time; (3) relator had nearly forgotten to renew her license the previous year; (4) relator’s employee badge contained an expiration notice; and (5) relator had done this work for six years, acknowledged that it was her responsibility to renew her license, and should have appreciated the license-renewal deadline.  Under these circumstances, her failure to make the renewal—even if due to inadvertent lack of memory—constitutes a substantial lack of concern for employment and amounts to misconduct as a matter of law. 

            Relator adds that failing to renew her license two months before it expires is different from losing her license.[2]  But the record shows that failure to make a timely application for renewal results in early expiration of the gaming license.  And as long as relator’s loss of license was imminent and unavoidable, it is of no significance exactly when she was fired.  There being evidence in this case that renewal would not occur without application before November 30, we find nothing in the case law permitting a distinction between conduct resulting in a loss of license and the imminent occurrence of that loss.  And we observe that relator had notice that she would lose her job if she did not renew her license by November 30, not only from the expectation of needing a gaming license to be a casino cashier and actual knowledge of the need to renew, but also from settled company policy. 

            Finally we note respondent Little Six’s argument that the unemployment law judge strayed into interpreting rules that are the province of the Shakopee Mdewakanton Sioux Community.  The judge did discuss the possibility that relator might have renewed her license after November 30 under Minnesota gaming rules.  Because the commissioner’s representative’s decision is sustained and involves no determination depending on gaming commission rules, we need not address this concern.[3] 




[1] In Peterson, the court criticized the commissioner’s representative for solely relying on Markel (and ignoring Swanson and Eddins) when (1) drinking and driving is worse than speeding; and (2) the employer in Markel tried to help his employee retain his employment whereas Peterson’s employer refused to do so.  Peterson, 495 N.W.2d at 879. 

[2] The unemployment law judge determined that relator’s failure to renew her gaming license 60 days before it expired was not “misconduct” because it was different from the company policy that failure to renew a gaming license results in immediate discharge. 

[3] In any case, we review the findings of the commissioner’s representative and not those of the referee.  Loewen v. Lakeland Mental Health Ctr., Inc., 532 N.W.2d 270, 274 (Minn. App. 1995).