This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat 480A.08, subd. 3 (1996)

STATE OF MINNESOTA
IN COURT OF APPEALS
C8-98-475

Ed Woods,
Relator,

vs.

Advance Circuits, Inc.,
Respondent,

Commissioner of Economic Security,
Respondent.

Filed September 1, 1998
Affirmed
Short, Judge

Department of Economic Security
File No. 7567UC97

Stephen L. Smith, James C. Wicka, Messerli & Kramer P.A., 1800 Fifth Street Towers, 150 South Fifth Street, Minneapolis, MN 55402 (for relator)

Joseph W. Anthony, Mary L. Knoblauch, Steven M. Phillips, Fruth & Anthony, P.A., 3750 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent employer)

Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)

Considered and decided by Short, Presiding Judge, Schumacher, Judge, and Davies, Judge.

U N P U B L I S H E D   O P I N I O N

SHORT, Judge

Ed Woods, an inspector for Advance Circuits, Inc., was separated from employment because he intentionally tape-recorded a conversation among three of his co-workers while he was not in the room. By writ of certiorari, Woods appeals from the commissioner's denial of reemployment insurance benefits due to misconduct. We affirm.

D E C I S I O N

The reemployment insurance fund is available only to persons involuntarily "unemployed through no fault of their own." Minn. Stat. 268.03 (Supp. 1997); White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). Therefore, an employee discharged for misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. 268.09, subd. 10(1) (Supp. 1997). The employer has the burden of proving the employee's misconduct. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). Our review of the commissioner's factual findings is limited to whether the evidence, viewed in the light most favorable to the decision below, supports that decision. Id. However, we review de novo whether those facts constitute misconduct. Id.

Woods argues evidence that he tape-recorded the conversation of his co-workers does not support the commissioner's conclusion that he demonstrated a disregard for his employer's "standard of behavior" and thus, does not constitute misconduct as a matter of law. See Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (providing definition of misconduct) (quoting Boynton Cab Co. v. Neubeck, 296 N.W. 636, 640 (Wis. 1941)). However, the record demonstrates: (1) contrary to company policy, Woods tape-recorded a conversation among his co-workers that took place while he was absent from the room; (2) on at least one previous occasion, Woods was informed that employee tape-recording of conversations was not permitted on the employer's premises; (3) after Woods confronted his co-workers about the content of the taped conversation, those co-workers filed "offensive behavior" complaints with the employer; and (4) Woods had previously received written and verbal warnings regarding disruptive, intimidating, and threatening behavior. Given these facts and our limited standard of review, we conclude Wood's tape-recording of his co-workers constituted a disregard for the standards of behavior that an employer has a right to expect from its employees, and constitutes "misconduct" under Minn. Stat. 268.09, subd. 10(1). See Ress, 448 N.W.2d at 524 (concluding when conducting misconduct analysis, courts examine whether employee deliberately violated standards of behavior that employer has right to expect of its employee, whether employee's conduct adversely affected business or other employee's morale, and whether employee ignored past warnings); see also Sivertson v. Sims Sec., Inc., 390 N.W.2d 868, 871 (Minn. App. 1986) (declining to engage in examination of whether employer chose to enforce its rules selectively because only question is whether employee's violation of those rules constituted misconduct), review denied (Minn. Aug. 20, 1986).

Affirmed.