This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Diana E. Johnson Meyer,
Commissioner of Employment and Economic Development,
Department of Employment and Economic Development
File No. 6307 04
Diana E. Johnson Meyer, 6725 Penn Avenue South, Apt. 203, Richfield, MN 55423-2008 (relator pro se)
Lee B. Nelson, Linda A. Holmes, Minnesota 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 Wright, Presiding Judge, Randall, Judge, and Minge, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from a decision by the commissioner that she was not eligible for unemployment benefits, relator argues that because she earned more than $250 in September 2003, she had wage credits for the third quarter of 2003, and, therefore, met the requirements to establish a benefits account under Minn. Stat. § 268.07, subd. 2(a) (2002). We affirm.
Relator Diana Johnson Meyer was employed at Prudential Financial from December 2000 to October 2002, earning in excess of $10,000 for the fourth quarter of 2002. After being laid-off in October 2002, relator was self-employed selling insurance products until September 2003. During this time, relator had little or no income. On September 24, 2003, relator began working for Araz Group (Araz), earning a salary of approximately $40,000 a year. Relator was paid $461.54 on October 3, 2003, for 24 hours worked from September 24, through September 27. On October 17, 2003, relator was paid $1,538.46 for the period from September 28, through October 11.
On February 13, 2004, relator was laid-off from her employment at Araz. Relator subsequently filed an application for an unemployment benefit account effective February 29, 2004. An initial determination of benefit account was issued, stating that no account had been established because relator did not have adequate wage credits. The determination concluded that although relator had earnings in excess of $10,000 for the fourth quarter of 2002, relator did not have any wage credits in the first, second, and third quarters of 2003.
Relator appealed the determination, and following a de novo hearing, a department of unemployment law judge affirmed the initial determination. Upon further appeal to the commissioner, a final agency decision was issued by the commissioner affirming the determination that relator did not meet the requirements to establish a benefits account. This certiorari appeal followed.
D E C I S I O N
Relator argues that the commissioner erred in determining that she did not have the appropriate wage credits to establish a benefit account. On appeal, this court reviews the decision of the commissioner rather than that of the unemployment law judge. Weaver v. Minn. Valley Labs., Inc., 470 N.W.2d 131, 133 (Minn. App. 1991). The standard of review in economic security cases is narrow. McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 594 (Minn. 1988). The factual findings of the commissioner are “viewed 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). On questions of law, this court is not bound by the commissioner’s conclusions, but exercises its independent judgment. Markel v. City of Circle Pines, 479 N.W.2d 382, 384 (Minn. 1992).
Minnesota law provides: “To establish a benefit account, an applicant must have: (1) high quarter wage credits of at least $1,000; and (2) wage credits, in other than the high quarter, of at least $250.” Minn. Stat. § 268.07, subd. 2(a) (2002). Wage credits are defined as “the amount of wages paid within an applicant’s base period for covered employment.” Minn. Stat. § 268.035, subd. 27 (2002). An applicant’s “base period” is the first four of the last five completed calendar quarters prior to the effective date of an applicant’s benefit account as set forth below:
on or between these dates: is the prior:
January 1 – March 31 October 1 – September 30
April 1 – June 30 January 1 – December 31
July 1 – September 30 April 1 – March 31
October 1 – December 31 July 1 – June 30
Minn. Stat. § 268.035, subd. 4(1) (2002).
Here, the effective date of relator’s benefit account was February 29, 2004, making her base period from October 2002, through September 2003. See id. It is undisputed that because she earned in excess of $10,000 in the fourth quarter of 2002, relator established the first prong of Minn. Stat. § 268.07, subd. 2(a). But the commissioner concluded that relator failed to meet the second prong of section 268.07, subd. 2(a), because relator did not have any wage credits in the first, second, and third quarters of 2003. The commissioner therefore concluded that relator did not meet the requirements to establish an unemployment benefit account.
argues that because she earned $769.20 in September 2003, she had wage credits of more than
$250 for the third quarter of 2003.
Thus, relator argues that the
commissioner erred in concluding that she failed to meet the second prong of Minn. Stat. § 268.07, subd. 2(a). We disagree. We understand appellant’s point of view, but a recent legislative change negatively impacts her request. In Tuma v. Comm’r of Econ. Sec., 386 N.W.2d 702, 707 (Minn. 1986), the Minnesota Supreme Court held that the phrase “actually or constructively paid,” used in the definition of “wage credits” under Minn. Stat. § 268.04, subd. 26 (1984), included wages earned by an employee during his base period but not paid to the employee until after his base period had ended. So in 1998, the legislature repealed Minn. Stat. § 268.04. 1998 Minn. Laws ch. 265, § 46. The legislature then enacted Minn. Stat. § 268.035. 1998 Minn. Laws ch. 265, § 4. The applicable portion of this statute provides:
(a) “Wages paid” means the amount of wages that have been actually paid or that have been credited to or set apart so that payment and disposition is under the control of the employee. Wage payments delayed beyond the regularly scheduled pay date are considered “wages paid” on the missed pay date. Back pay shall be considered “wages paid” on the date of actual payment. Any wages earned but not paid with no scheduled date of payment shall be considered “wages paid” on the last day of employment.
(b) Wages paid shall not include wages earned but not paid except as provided for in this subdivision.
Minn. Stat. § 268.035, subd. 30 (2002) (emphasis added).
Although relator earned in excess of $250 in September 2003, she was not paid until October 3, 2003. Because relator was not actually paid until October 3, her September wages do not meet the definition of “wages paid.” See id. Consequently, relator did not technically have the requisite wage credits to establish a benefits account under Minn. Stat. § 268.07, subd. 2(a). We understand relator’s frustration that while she earned money in September, because she was not paid until October 3, she lost valuable wage credits. It seems arbitrary, but somewhere down the road, someone will qualify for unemployment benefits because she had wages “paid in October,” even though she never worked one day in the month of October, but was simply collecting compensation for September. The law is even-handed and neutral enough that it will go either way.
We conclude that the commissioner did not err in determining that relator did not have the appropriate wage credits to establish a benefit account.
 Relator calculates her September wages as $19.23 per hour, multiplied by five eight-hour days.