This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Philip A. Raskin,
North Prairie Tileworks, Inc.,
Commissioner of Employment and Economic Development,
Minnesota Department of Employment and Economic Development
File No. 2666 04
Vincent J. Ella, Ryan M. Pacyga, Mansfield, Tanick & Cohen, P.A., 1700 U.S. Bank Plaza, 220 South Sixth Street, Minneapolis, MN 55402-4511 (for relator)
Phillip R. Krass,
Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent Commissioner)
Considered and decided by Minge, Presiding Judge; Randall, Judge; and Wright, Judge.
Relator challenges the decision of the commissioner’s representative that he is disqualified from receiving unemployment benefits because he committed employment misconduct. We affirm.
On October 30, 2003, Raskin was directed to consolidate North Prairie’s two business accounts by transferring the balance from the S & P account to the North Prairie account. Rather than transferring the entire balance, Raskin wrote himself a check for $1,042.38 on the S & P account and transferred the remaining funds, approximately $4,314.12, to the North Prairie account. In early November, when North Prairie’s chief financial officer discovered the $1,042.38 withdrawal and confronted Raskin, Raskin said that he had reimbursed himself for business expenses. Raskin later stated that, from his consultation with an attorney, he learned that he was entitled to the $1,042.38 because this amount was in the S & P account prior to the sale. Raskin subsequently refunded North Prairie $1,045; and the parties’ ownership of these funds remains in dispute.
an inspection of the North Prairie account for other suspicious activity, the
chief financial officer discovered that Raskin had made an electronic transfer
of $403.40 from the North Prairie account to his personal credit-card account
on October 16, 2003. Raskin admitted
transferring the money to reimburse himself for his
Raskin applied for unemployment benefits. The Department of Employment and Economic Development determined that Raskin was disqualified from receiving benefits because he was discharged for employment misconduct. Raskin appealed, and an unemployment law judge reversed, concluding that, because Raskin believed in good faith that he was entitled to the $1,042.38 and North Prairie had no set procedure for reimbursement of business expenses, Raskin did not commit employment misconduct by withdrawing funds from the business accounts. North Prairie appealed the decision to the commissioner’s representative, who reversed. Finding that Raskin (1) withdrew funds from the employer’s business accounts without consulting officials at North Prairie about what funds were his; and (2) reimbursed himself for business expenses without prior authorization, the commissioner’s representative determined that Raskin was discharged for employment misconduct. This certiorari appeal followed.
review the findings of the commissioner’s representative rather than those of
the unemployment law judge. Tuff v. Knitcraft Corp., 526 N.W.2d 50,
an employee committed employment misconduct is a mixed question of fact and
v. FilmTec Corp., 644 N.W.2d 801, 804 (
An employee who is discharged for employment misconduct is
disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4 (Supp. 2003). Employment misconduct is “any intentional,
negligent, or indifferent conduct, on the job or off the job (1) that evinces a
serious violation of the standards of behavior the employer has the right to
reasonably expect of the employee, or (2) that demonstrates a substantial lack
of concern for the employment.”
an employer cannot expect perfection from its employees, an employer has the
right to expect that its employees will abide by reasonable instructions and
directions. McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592,
knowing violation of an employer’s directives, policies, or procedures also
constitutes employment misconduct because it demonstrates a substantial lack of
concern for the employer’s interests. See, e.g., Schmidgall, 644
N.W.2d at 804; Gilkeson v. Indus. Parts
& Serv., Inc., 383 N.W.2d 448, 452 (Minn. App. 1986) (finding
misconduct when employee engaged in pattern of failing to follow policies and
procedures and ignoring directions and requests). An employer has the right to expect
scrupulous adherence to its directives and procedures when an employee is
handling the employer’s money. McDonald v. PDQ, 341 N.W.2d 892, 893 (
We first consider Raskin’s withdrawal of $1,042.38 from the S & P account. Raskin argues that the record does not support the conclusion that he committed employment misconduct because he withdrew only money that belonged to him. Raskin’s argument is unavailing for several reasons. First, the record demonstrates that Raskin withdrew funds without his employer’s authorization from an account either owned or used by North Prairie for conducting business transactions. Simply because Raskin had the authority to write checks from the S & P account did not permit him to write a check to himself for nonbusiness purposes. North Prairie deposited money received from customers and paid its employees out of this account. North Prairie had the right to expect that an employee with signatory authority on its business accounts would not abuse such access by withdrawing funds for personal use without notice, an accounting of the funds, and preauthorization by North Prairie.
Even if Raskin genuinely believed that he was lawfully
entitled to funds in the S & P account, North Prairie had the
right to reasonably expect Raskin to consult with the owners and reach an
agreement as to which funds in the account belonged to him. Although Raskin testified that he had access
to financial records and, therefore, was able to distinguish between the amount
in the account that was his and that which belonged to North Prairie, a
reasonable employer has the right to expect that its employee would not take the
initiative to make this determination and withdraw funds without any prior
Secondly, the record demonstrates that Raskin wrote himself a check on the S & P account in violation of North Prairie’s specific directive. North Prairie directed Raskin to consolidate the two business accounts by transferring the balance from the S & P account to the North Prairie account. Instead, Raskin wrote a check to himself and transferred only the remaining balance to the second account. Demonstrating a substantial lack of concern for the employment, Raskin’s failure to follow North Prairie’s instructions constitutes employment misconduct. See id., subd. 6(a)(2) (defining employment misconduct as conduct demonstrating “a substantial lack of concern for the employment”); Vargas, 673 N.W.2d 200, 206.
Moreover, Raskin’s claim that he was entitled to the $1,042.38 because that amount was not transferred to the new owners with the sale of the business is not compelled by the record. Although Raskin now advances this contention on appeal, he originally told North Prairie that the funds were withdrawn to reimburse himself for business expenses. These contradictory explanations support the conclusion that Raskin was not acting in good faith. Rather, he was appropriating North Prairie’s funds.
In sum, Raskin’s unauthorized withdrawal of $1,042.38 constitutes a serious violation of the standards of behavior that an employer has the right to expect from an employee and demonstrates a substantial lack of concern for his employment. Accordingly, the commissioner’s representative did not err in concluding that Raskin engaged in employment misconduct.
We next consider Raskin’s withdrawal of $403.40. Raskin argues that this alleged reimbursement for business expenses did not constitute employment misconduct because North Prairie did not have a specific policy in place for reimbursement of business expenses and North Prairie’s president admitted that Raskin’s expenses were reimbursable. We disagree.
Although North Prairie did not have a written policy for reimbursement, the record demonstrates that it had set procedures for handling payables. The president, treasurer, Raskin, and the secretary of the corporation met weekly to discuss payables, including reimbursements. In order for the company to compute the payables accurately, Raskin was required to document his business expenses with receipts describing the nature of the expenditure rather than a credit-card statement, which states only when expenses were incurred. Because a credit-card statement typically lacks sufficient detail to determine whether an expense constitutes a business expenditure, the receipt requirement was a reasonable request.
After his credit-card statement was rejected as inadequate documentation, Raskin failed to provide receipts documenting his business expenses. Raskin’s e-mail to the board of directors, in which he threatened to stop attending trade shows if North Prairie refused to reimburse him, establishes his knowledge that the company’s authorization was necessary for reimbursement. Raskin, however, circumvented company procedure and, on his own initiative, reimbursed himself by transferring money from North Prairie’s account to pay his credit-card debt. Raskin’s actions demonstrated a substantial lack of concern for his employment, thereby constituting employment misconduct.
As the commissioner’s representative noted, North Prairie had a right to expect “scrupulous adherence to procedure” by an employee when dealing with an employer’s money. See McDonald,341 N.W.2d at 893. The willingness of North Prairie’s president to reimburse Raskin for properly documented business expenses does not suggest that Raskin was justified in reimbursing himself under the circumstances present here. When viewed in the light most favorable to the decision, Raskin’s choice to reimburse himself without notifying and receiving authorization from North Prairie demonstrates a disregard for his employment and constitutes a serious violation of the standards of behavior that an employer has a right to expect. See Schmidgall, 644 N.W.2d at 804 (noting that a knowing violation of employer’s procedures constitutes misconduct because it demonstrates substantial lack of concern for employer’s interests).
Relying on an unpublished opinion, Zeno v. Turning Point, Inc., No. A03-1246, 2004 WL 1152751 (Minn.
App. May 25, 2004),
Raskin argues that, because he returned $1,045 to North Prairie, his actions
cannot constitute employment misconduct.
But Zeno is plainly
inapposite. In Zeno, an employee accepted $2 from his clients for gas money when
the employee handbook clearly prohibited employees from accepting client
gifts. Because the employee returned the
money as soon as he learned that he had violated his employer’s policies, we
determined that this “isolated incident” was not employment misconduct, but
rather an unintentional and careless error.
In contrast,Raskin’s unauthorized payments to himself of nearly $1,500 were neither isolated, minimal, nor unintentional failures to follow his employer’s directives. Accordingly, the commissioner’s representative did not err in concluding that Raskin committed employment misconduct.
 North Prairie originally filed a brief contesting Raskin’s claim for unemployment benefits. Based on a subsequent settlement between Raskin and North Prairie in an unrelated matter, North Prairie withdrew its opposition to Raskin’s appeal.
 The revisor of statutes inadvertently substituted the term “ineligible for” for the term “disqualified from” in Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (Supp. 2003). See Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (2002) (using term “disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 11 (making other changes to Minn. Stat. § 268.095, subd. 1, but retaining term “disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 20(j), (k) (directing revisor to change the term “disqualified from” to “ineligible for” only in Minn. Stat. § 268.095, subd. 12, and then to renumber to Minn. Stat. § 268.085, subd. 13b).
 Unpublished opinions lack precedential authority in deciding appeals. Minn. Stat. § 480A.08, subd. 3(c) (2004); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800-01 (Minn. App. 1993) (addressing dangers of miscitation and unfairness associated with use of unpublished opinions and stating that “[t]he legislature has unequivocally provided that unpublished opinions are not precedential”).