This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Michael W. Honeyford,
Brown & Bigelow, Inc.,
Commissioner of Employment and
Filed November 25, 2003
Department of Employment and Economic Development
File No. 917 03
Elizabeth M. De Courcy, Winthrop & Weinstine, 3000 Dain Rauscher Plaza, 60 South Sixth Street, Minneapolis, MN 55402 (for relator)
Ranga Nutakki, Michael J. Galvin, Briggs and Morgan, P.A., 80 South Eighth Street, Suite 2200, Minneapolis, MN 55402 (for respondent Brown & Bigelow)
Lee B. Nelson, Philip B. Byrne, Minnesota Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN 55101 (for respondent Commissioner)
Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Anderson, Judge.
Relator Michael W. Honeyford challenges a decision by a representative of the respondent Commissioner of Economic Security, now known as the Commissioner of Employment and Economic Development, disqualifying him from receiving unemployment benefits. The commissioner’s representative determined that relator was disqualified because he was discharged from his employment with respondent Brown & Bigelow, Inc. for employment misconduct.
In this certiorari appeal, relator claims that because his absences and tardiness were caused by actions beyond his control, he did not act with the intent necessary to establish employment misconduct. Because the evidence reasonably supports findings that relator failed to follow Brown & Bigelow’s call-in policy and was repeatedly late or absent, despite warnings, we affirm the decision of the commissioner’s representative that relator was disqualified because he was discharged for employment misconduct.
Brown & Bigelow is a calendar manufacturing company whose busiest time is at the end of the year. In order for Brown & Bigelow to meet its production schedule, it is imperative for employees to report for work as scheduled.
Relator first worked through a temporary agency, but was hired as a full-time employee on November 11, 2002. Upon hiring, relator received a copy of the company’s attendance policies, which required “[a]ll absences and/or expected tardiness [to be] reported prior to employee’s scheduled starting time, but no later than one (1) hour after the start of [a] shift.” The policy also defined a “No Call/No Show” as “[w]hen the employee calls in late, but does not show for work or call back to say he/she will not be in after all OR not calling in stating you will not be in for work at all.” If an employee committed a No Call/No Show, he or she would receive a written warning after the first occurrence, with two No Call/No Shows within a 12-month period resulting in termination.
Relator’s supervisor, Charles Rogers, testified that relator had attendance problems prior to obtaining status as a full-time employee. Rogers testified that he nevertheless decided to hire relator due to the company’s need for additional employees during its busy season. Rogers told relator that he would hire him only if he remedied his attendance problems.
Despite relator’s agreement, his attendance problems persisted after his hiring. On November 26, relator arrived 30 minutes late and did not call in. On December 4, he was a No Call/No Show; relator later claimed that he had been arrested the night before and was incarcerated throughout his shift. He explained that he was not allowed to call Rogers’ cell phone from the police station, as he claimed Rogers had instructed him to do in order to report any absences. On December 5, the company gave relator a formal warning about his No Call/No Show the previous day. The warning also noted his tardiness on November 26 as a No Call/No Show. Relator was again late for work the next day, December 6.
Finally, on December 13, 3 hours and 45 minutes after his scheduled start time, relator left a message with Rogers that he would be late. Relator claimed that his tardiness was due to a power outage in his apartment building, which deactivated his alarm clock and caused him to oversleep. Because he had failed to call in within one hour of his start time, relator received his second No Call/No Show within two weeks. The company discharged relator that day because he had more than two No Call/No Shows within a 12-month period, in violation of company policy.
Our review of unemployment insurance cases is limited to determining whether the record reasonably supports the decision of the commissioner’s representative. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995); Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn. 1992); Cent. Specs., Inc. v. Comm’r of Econ. Sec., 622 N.W.2d 833, 835 (Minn. App. 2001), review denied (Minn. May 15, 2001).
An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2002). Employment misconduct is defined to mean:
(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 of indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.
Id., subd. 6(a) (2002). We agree with the commissioner and with Brown & Bigelow that, under either definition, relator is disqualified from receiving benefits.
Relator argues that his absences and tardies were not intentional, but were due to circumstances beyond his control, which included an incarceration that prevented him from calling his supervisor’s cell phone number, a power outage that deactivated his alarm clock, and a time-consuming transit to work that included three bus transfers. In determining whether an employee’s reasons for an absence were intentional, we consider “whether the employee’s behavior caused his failure to report to work” or whether the absence was “[due] to circumstances within the control of the employee.” Winkler v. Park Refuse Serv., Inc., 361 N.W.2d 120, 124 (Minn. App. 1985); see also Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002) (interpreting 2002 statutory definition of misconduct).
As Brown & Bigelow reasons, although it was unfortunate that relator had to transfer buses three times in order to get to work, he was fully aware of this requirement and should not be excused from his obligation to be at work as scheduled. In addition, while relator’s incarceration may have made it impossible for him to report for work or to call Rogers’ cell phone, relator did not explain why he failed to contact the guard or why he did not have his grandmother contact Rogers, as she had previously done. And while he claims that he was incarcerated because “he challenged the propriety of a traffic stop on the car in which he was traveling,” it appears that he could have avoided the incarceration by remaining compliant. Because it is clear that relator’s underlying behavior caused his incarceration, his actions were either intentional or, at the very least, negligent or indifferent.
Relator further argues that even if his actions were intentional, he did not act with an intent to disregard Brown & Bigelow’s attendance policies because, once again, his absences and tardiness were accidental and outside of his control. But the facts here establish that during his short employment with Brown & Bigelow, relator had ongoing attendance problems, had been warned several times about those problems, and continued to place himself in situations that made it difficult or impossible for him to meet Brown & Bigelow’s attendance policies.
Even if not willful or deliberate, chronic and excessive absenteeism and tardiness may amount to misconduct. Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985). “The 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). Excessive tardiness or absences, particularly after warnings, may evidence an employee’s disregard of an employer’s interest or lack of concern for the employment. McLean v. Plastics, Inc., 378 N.W.2d 104, 107 (Minn. 1985); Evenson v. Omnetic’s, 344 N.W.2d 881, 883 (Minn. App. 1984). Moreover, an employee who fails to properly notify an employer of intended absences and to comply with employer policies regarding attendance demonstrates a lack of concern for the employment and commits disqualifying misconduct. See Edwards v. Yellow Freight Sys., 342 N.W.2d 357, 359 (Minn. App. 1984) (employee committed misconduct by repeatedly failing to comply with employer’s regulation to provide two hours’ advance notice when unable to report for work).
Based on this record, we agree that the evidence reasonably supports the decision of the commissioner’s representative, who concluded that relator’s “behavior evinced an intentional disregard of his duties and obligations to the employer and a substantial lack of concern for his employment.” The decision of the commissioner’s representative is therefore affirmed.
 This statute has been amended, effective August 1, 2003. 2003 Minn. Laws, ch. 3, art. 2, §§ 13, 20(g) (1st Spec. Sess.). Because the events here all took place prior to that date and because the decision of the commissioner’s representative was issued in April 2003, we apply the statute in effect at the time of relator’s discharge in December 2002.