This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Jon C. Marlatt,





Haskell’s, Inc.,



Commissioner of Economic Security,



Filed December 24, 2002


Kalitowski, Judge


Department of Economic Security

File No. 11096 01


Jon C. Marlatt, 765 Rose Place, Roseville, MN 55113 (pro se relator)


Haskell’s, Inc., 12900 Wayzata Blvd., Minnetonka, MN 55305 (respondent)


Linda A. Holmes, Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)


            Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator contends that the commissioner’s representative erred in finding that relator was discharged for employment misconduct and therefore did not qualify for unemployment compensation.  We affirm.



Appellate review in economic security cases is narrow.  McGowan v. Executive Express Transp. Enterprises, Inc., 420 N.W.2d 592, 594 (Minn. 1988).  Decisions of the commissioner’s representative are accorded particular deference.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). 

An employee discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Whether an employee has committed employment misconduct presents a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  The determination as to whether the employee committed a particular act or acts is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  But whether the act or acts constitute misconduct is a question of law on which appellate courts are “free to exercise [their] independent judgment.”  Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

            Misconduct is defined by statute as:

            (1) any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee’s duties and obligations to the employer; or


            (2) negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.


Minn. Stat. § 268.095, subd. 6(a) (2002). 

Relator admitted to the commissioner’s representative that he arrived late for work at Haskell’s, Inc. more than ten times between July 30, 2001, and August 25, 2001.  Thus, the record supports the factual findings of the commissioner’s representative, and we must next determine whether, as a matter of law, relator’s actions rose to a level of misconduct contemplated under Minn. Stat. § 268.095, subd. 6.

Relator argues that he had worked out an arrangement with his general supervisor that allowed relator to alter his hours at Haskell’s during the month of August because of a second job.  But relator presented no evidence to support that claim.  And even if there was an alternate work schedule, relator could not and did not blame his tardiness on his second job because the hours for that job did not conflict with his starting time at Haskell’s.  Relator instead blamed his tardiness on traffic, even when he was over one and a half hours late to work.  Moreover, relator admitted that he could have gotten up earlier in order to correct the problem, but did not do so.  Instead relator consistently came to work late.  This demonstrated a substantial lack of concern for his employment.

Relator next contends that he was never warned that his tardiness was a problem.  But, in the context of a claim for unemployment benefits, the issue is not whether the employer properly terminated the employee; it is whether the terminated employee is entitled to unemployment compensation.  Auger v. Gillette Co., 303 N.W.2d 255, 257 (Minn. 1981).  And even a single incident may constitute misconduct disqualifying an employee from unemployment benefits, Wilson v. Comfort Bus Co., Inc., 491 N.W.2d 908, 911 (Minn. App. 1992), review denied (Minn. Jan. 15, 1993), if that conduct disregarded the standards of conduct the employer had a right to expect.  Minn. Stat. § 268.095, subd. 6(a).

“[An] employer has a right to expect an employee to work when scheduled.”  Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984) (citation omitted).  Chronic and excessive absenteeism and tardiness, even if not deliberate or willful, may constitute misconduct.  Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985).  Excessive lateness or absenteeism demonstrates the employee’s disregard of the employer’s interest or lack of concern for the position.  Id

We conclude that relator’s excessive lateness was properly characterized as employment misconduct because the constant tardiness demonstrated a substantial lack of concern for the employment.