This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Gary M. Jacob,





Commissioner of Employment and Economic Development,



Filed May 17, 2005


Gordon W. Shumaker, Judge


Department of Employment and Economic Development

File No. 5955 04




Gary M. Jacob, 2213 South Bent Tree Lane, Mendota Heights, MN 55120 (pro se appellant)


Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101 (for respondent)


            Considered and decided by Shumaker, Presiding Judge; Toussaint, Chief Judge; and Crippen, Judge.*


U N P U B L I S H E D   O P I N I O N


Relator appeals the commissioner’s representative’s decision that he must repay $3,180 in unemployment benefits plus a $795 fine for fraud.  Because the commissioner’s representative did not err in his decision, we affirm.


            Relator Gary Jacob established an unemployment benefit account in December of 2002.  He received benefits throughout a period in early 2003 during which he reported that he did not work and did not receive income.  During that period, Jacob started a new sales job which provided him with a weekly advance on future commissions. 

The commissioner’s representative affirmed an unemployment law judge’s decision that Jacob had been overpaid throughout the period because of his earnings from the new job.  The commissioner’s representative acknowledged that Jacob may have made a good-faith error in thinking that the payment he received was not income, but stated that Jacob “clearly knew that he was working.”  Therefore, the commissioner’s representative assessed a 25% penalty for fraud as provided by Minn. Stat. § 268.18, subd. 2(a) (2002). 


We review decisions of the commissioner’s representative with “particular deference.”  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  While this court defers to the commissioner’s findings of fact if they are reasonably supported by the evidence in the record, the court exercises its independent judgment with respect to questions of law.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  The ultimate determination of whether an employee is disqualified from receipt of unemployment benefits is a question of law that this court reviews de novo.  Id.


Minn. Stat. § 268.085, subd. 5(a) (2002), provides that an applicant who has weekly earnings equal to or in excess of his weekly benefit amount is ineligible for unemployment benefits.  Jacob argues that the advance commissions he received from his new employer were not earnings for unemployment-benefit purposes but were instead loans which he would have to repay.  Jacob also contends that he remained eligible to receive unemployment benefits because he was working less than 32 hours per week.  See Minn. Stat. § 268.085, subd. 2(5) (2002) (providing that applicants who work more than 32 hours per week are ineligible for benefits regardless of the amount of any earnings).

Minn. Stat. § 268.035, subd. 29 (2002), defines “wages” as “all compensation for services, including commissions.”  Minn. Stat. § 268.035, subd. 30 (2002), defines “wages paid” as “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.”  (Emphasis added.)  These definitions clearly include the advance commissions Jacob received from his new employer.

The commissioner’s representative found that Jacob had earnings of $520 per week for all but one of the weeks in question and that Jacob’s weekly benefit amount was $350.  The commissioner’s representative also stated that Jacob “was employed” but did not make a specific finding as to the number of hours he worked.  But the finding of earnings in excess of his weekly benefit amount alone is sufficient to have made Jacob ineligible during the period in question.  Therefore, the commissioner’s representative’s decision that Jacob must repay benefits was not in error.


“Any applicant who receives unemployment benefits by intentionally misrepresenting, misstating, or failing to disclose any material fact has committed fraud.”  Minn. Stat. § 268.18, subd. 2(a) (2002).  “Whether a claimant knowingly and willfully misrepresented or misstated material facts to obtain benefits involves the credibility of the claimant's testimony which lies within the province of the commissioner.”  Burnevik v. Dep’t of Econ. Sec., 367 N.W.2d 681, 683 (Minn. App. 1985). 

Jacob argues that he did not commit fraud because he simply misunderstood the law.  He claims that he denied that he had worked because he worked less than 32 hours in each of the weeks in question.  But Jacob testified before the unemployment law judge that the department’s telephonic claim procedure required him to respond each week to the question “did you work?” and that he replied each week in the negative.  The commissioner’s representative decided that Jacob clearly knew that he was working when he made this statement, and apparently did not accept Jacob’s interpretation of the question.  The commissioner’s representative finding of fraud and the resultant penalty are reasonably supported by the evidence in the record and will not be reversed.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.