This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
John D. Richter,
Minnesota Department of Revenue,
Commissioner of Employment and Economic Development,
Filed August 12, 2003
Affirmed in part, reversed in part
Department of Employment and Economic Development
File Nos. 8239 00, 11137 02
John D. Richter, P.O. Box 217, Milaca, MN 56353-0217 (pro se relator)
Minnesota Department of Revenue, Personnel Office, St. Cloud Location, 600 Robert Street North, St. Paul, MN 55146-6000 (respondent employer)
Lee B. Nelson, M. Kate Chaffee, Minnesota Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN 55101 (for respondent commissioner)
Considered and decided by Halbrooks, Presiding Judge, Anderson, Judge, and Parker, Judge.
In this consolidated appeal, appellant John D. Richter argues that respondent Department of Employment and Economic Development’s commissioner’s representative erred by dismissing his appeal of an unemployment law judge’s decision as untimely and ruling that he was ineligible for unemployment benefits once he started to receive pension benefits because respondent Department of Revenue (DOR) was considered one of his base-period employers when he received alleged back pay from DOR during his unemployment-benefits base period.
1. Untimeliness of the employment misconduct appeal
Richter challenges the commissioner’s representative’s determination that his appeal of the unemployment law judge’s (ULJ) decision of employment misconduct was untimely when he filed it with the commissioner’s representative 15 months after the 30-day deadline expired. He also argues that the Department of Employment and Economic Development’s appeals process was difficult for him to undergo because of his mental state at the time.
We review the commissioner’s representative’s findings “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. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). Whether the commissioner erred in dismissing an appeal as untimely is a question of law. Stottler v. Meyers Printing Co., 602 N.W.2d 916, 918 (Minn. App. 1999). The timeliness of an appeal is a jurisdictional issue, and “[j]urisdiction is a question of law that we review de novo.” Harms v. Oak Meadows, 619 N.W.2d 201, 202 (Minn. 2000) (citation omitted). This case also involves statutory interpretation, which we consider de novo. Id.
We have held that “[a] department referee must dismiss an untimely appeal for lack of jurisdiction.” Nieszner v. Minn. Dep’t of Jobs & Training, 499 N.W.2d 832, 837 (Minn. App. 1993) (citation omitted). We must strictly construe DES’s time limit for appeals. Andstrom v. Willmar Reg’l Treatment Ctr., 512 N.W.2d 117, 118 (Minn. App. 1994). “The time limit for an appeal will not be extended [and] * * * [l]ack of a timely appeal requires dismissal of the appeal for lack of jurisdiction regardless of alleged mitigating circumstances.” Baldinger Baking Co. v. Stepan, 354 N.W.2d 569, 570 (Minn. App. 1984)review denied (Minn. Dec. 20, 1984) (citing Cole v. Holiday Inns, Inc., 347 N.W.2d 72 (Minn. App. 1984)).
The commissioner’s representative dismissed Richter’s appeal of the ULJ’s decision that Richter filed on September 18, 2002, because it was not filed within the 30-day statutory deadline for an appeal. The applicable statutory deadline is provided in Minn. Stat. § 268.105, subd. 2(a) (2002), which states that:
Within 30 calendar days after mailing of the unemployment law judge’s decision, any involved applicant or involved employer may appeal and obtain a de novo review by the commissioner or an authorized representative. The commissioner within the same period of time may on the commissioner’s own motion order a de novo review.
There is evidence that the ULJ mailed the order on May 18, 2001, which found that Richter committed employment misconduct. The cover letter of this order stated in large letters that Richter only had 30 days to appeal from the mailing date of May 18, 2001. The letter provided:
Under Minnesota Statutes § 268.105, Subdivision 2, THIS DECISION WILL BE FINAL UNLESS YOU APPEAL TO THE REPRESENTATIVE OF THE COMMISSIONER WITHIN 30 CALENDAR DAYS FROM THE DATE BELOW THAT SHOWS WHEN THE DECISION WAS MAILED.
Because Richter filed his appeal on September 18, 2002, his appeal was untimely. We need not address Richter’s argument that his mental state at the time interfered with his ability to file a timely appeal because such alleged mitigating circumstances will not make an appeal timely. See Baldinger Baking Co., 354 N.W.2d at 570 (holding that no time limit for an appeal will be extended). Thus, we affirm the commissioner’s representative’s dismissal of Richter’s appeal for lack of jurisdiction.
2. Richter’s receipt of alleged back pay and pension benefits
Richter contends that the commissioner’s representative erred by discounting his $868 per month pension benefits from his $146 per week unemployment compensation benefits, starting the date that Richter began receiving his pension benefits because his former employer, DOR, is not considered one of his base-period employers. He argues that the wages in the amount of $152.11 that he received from DOR on February 9, 2001, were not back pay, so DOR could not have been one of his base-period employers.
We view the commissioner’s representative’s factual findings in the light most favorable to the decision, and we do not disturb these findings if evidence in the record reasonably tends to sustain them. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996). While we defer to the commissioner’s representative’s findings of fact if the evidence in the record reasonably supports them, we exercise our independent judgment with respect to questions of law. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).
The commissioner’s representative found that the late wages that Richter received on February 9, 2001, from DOR for overtime hours in January and February 1998 and April 1999 were considered “back pay.” The commissioner’s representative stated that:
As a result of an agreement between the U.S. Department of Labor and the Minnesota Department of Employee Relations, Richter was paid $152.11 in the first calendar quarter of 2001 as a back pay award for overtime initially paid to him at straight time instead of time and one half during 1998 and 1999.
Minnesota law provides that if an applicant’s back pay for a particular week exceeds the applicant’s unemployment compensation benefits amount, the applicant is not eligible to receive benefits that week, stating:
An applicant shall not be eligible to receive unemployment benefits for any week with respect to which the applicant * * * has received * * * an amount equal to or in excess of the applicant’s weekly unemployment benefit amount in the form of * * * back pay.
Minn. Stat. § 268.085, subd. 3(a)-(a)(1). Minn. Stat. § 268.035, subd. 3 (2002), defines “back pay” as
a retroactive payment of money by an employer to * * * [a] former employee for lost wages as determined by an arbitration award, administrative or judicial decision, or negotiated settlement.
Richter’s $152.11 in overtime wages resulted from an audit conducted by the U.S. Department of Labor (DOL) and the Minnesota Department of Employee Relations, which determined that certain employees of DOR were entitled to additional payments for overtime hours previously worked and not properly paid. After DOR requested that Richter complete a survey regarding these wages, he submitted a request for hours for which he believed he should have been paid at a rate higher than he was.
The commissioner’s representative contends that the overtime wages resulted from a negotiated settlement. In a letter to the commissioner’s representative, a DOR representative stated that wages in the amount of $152.11
were paid as a result of an agreement between the Department of Labor and the Minnesota Department of Employee Relations. This agreement required each State of Minnesota agency to audit their positions to determine whether they were exempt or non-exempt under the Federal Labor Standards Act (FLSA).
(Emphasis added.) But Richter argues that there was no negotiated settlement. Richter testified that the overtime wages were a part of a “federal investigation where [the Department of Labor] went back and made the [DOR] pay overtime from previous years.”
We conclude that the overtime wages that DOR paid Richter were not considered back pay because the Department of Labor’s (DOL) audit did not result in an agreement in the sense of a “negotiated settlement.” The definition of an “audit” is a “formal examination of an * * * organization’s accounting records, financial situation, or compliance with some other set of standards.” Black’s Law Dictionary 126 (7th ed. 1999). Based on this definition, an audit is not an “agreement” or a “negotiated settlement.” In order for there to be an agreement in the sense of a “negotiated settlement,” DOR needed to have the ability to negotiate the terms of the agreement, to bargain, or to have a choice whether to accept DOL’s terms. The audit by its very nature was an adversarial process because it resulted from DOL’s investigation into whether DOR violated any provisions of the FLSA. The record provides no indication that there was a negotiation; instead, DOL required DOR to pay these overtime wages, and DOR acquiesced. Thus, we reverse the commissioner’s representative’s decision and conclude that Richter’s overtime wages in the amount of $152.11 were not “back pay” as provided under Minn. Stat. § 268.035, subd. 3.
Because Richter’s overtime wages were not “back pay,” Richter should have received the $146 unemployment benefit amount for the week of February 9, 2001, in addition to the $152.11 in overtime wages.
Richter also argues that if his lost wages were not back pay, then the commissioner’s representative also erred in ruling that his pension benefits should be deducted from his unemployment-compensation benefits, because DOR should not be considered one of his base-period employers.
An applicant is ineligible for unemployment-compensation benefits when he receives a pension contributed to by a base-period employer that equals the amount of his unemployment-compensation benefits amount. Minnesota law provides that:
An applicant shall not be eligible to receive unemployment benefits for any week with respect to which the applicant is receiving, has received, or has filed for payment in an amount equal to or in excess of the applicant’s weekly unemployment benefit amount in the form of:
* * *
(2) pension, retirement, or annuity payments from any plan contributed to by a base period employer * * *.
Minn. Stat. § 268.085, subd. 3(a), 3(a)(2) (emphasis added). The “base period” is defined as:
[T]he first four of the last five completed calendar quarters prior to the effective date of an applicant’s benefit account as set forth below:
If the benefit account is The base period is the prior:
effective on or between
* * * * * *
April 1 - June 30 January 1 - December 31
Minn. Stat. § 268.035, subd. 4(1) (2002). Richter applied for unemployment-compensation benefits in April 2002, so it is undisputed that his base period was from January 1, 2001, to December 31, 2001.
A base-period employer is an employer who paid the applicant wages during the base period. Vejdani v. W. Temp. Servs., Inc., 486 N.W.2d 461, 462 (Minn. App. 1992). “Wages” are defined as all compensation by an employer, including back pay. Minn. Stat. § 268.035, subd. 29 (2002). Richter did receive compensation from DOR.
The important issue is when these “wages” were credited to Richter’s income. The wages are “wages paid” when they are under the control of the employee. Id., subd. 30(a) (2002). And because Richter’s wages were not back pay, the wages are credited to Richter as either receiving the payment “on the missed pay date,” which would be January and February 1998 and April 1999, or “on the last day of employment,” which was April 4, 2000. None of these dates is within the base period of January 2001 to December 2001, so DOR is not considered Richter’s base-period employer. Thus, the commissioner’s representative erred by deducting Richter’s pension benefits that he received starting June 14, 2002, from his weekly unemployment-compensation benefits because DOR did not contribute both wages and a pension during his base period.
Affirmed in part, reversed in part.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.