This opinion will be unpublished and

may not be cited except as provided by

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







Jaclyn Miller,





HOM Furniture, Inc.,



Department of Employment and Economic Development,



Filed August 23, 2005


Parker, Judge*


Department of Employment and Economic Development

File No. 11689 04



R. Donald Hawkinson, 1455 West Lake Street, Suite 308, Minneapolis, Minnesota 55408-2648 (for relator)


Dennis J. Merley, Felhaber, Larson, Fenlon & Vogt, P.A., 220 South Sixth Street, Suite 2200, Minneapolis, Minnesota 55402-4302 (for respondent employer)


Linda A. Holmes, Department of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, MN  55101-1351 (for respondent Department of Employment and Economic Development)


            Considered and decided by Dietzen, Presiding Judge; Halbrooks, Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N


Relator challenges the decision by the senior unemployment review judge that relator was disqualified from receiving unemployment benefits because she had been discharged for misconduct after several absences and a final incident in which she overslept and called in an absence late.  Relator argues that she was absent due to postsurgical bleeding and that she did not engage in misconduct.  The department advised this court that it did not intend to file a brief and has concluded that the employee’s behavior was not misconduct, given the circumstances and the emergency situation in which she found herself.  We reverse.


Relator Jaclyn Miller challenges the senior unemployment review judge’s decision disqualifying her from unemployment benefits for employee misconduct.  On certiorari appeal, we accord particular deference to the decision of the senior unemployment review judge.[1]  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The determination of whether an employee committed a specific act of misconduct is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  But whether specific acts constitute misconduct is a question of law which we review de novo.  Id. 

When employees are discharged for employment misconduct, they are disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4 (Supp. 2003).[2]  Minnesota law defines employment misconduct as “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.”  Id. subd. 6(a).  “Inefficiency, inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, conduct an average reasonable employee would have engaged in under the circumstances, . . . or absence because of illness or injury with proper notice to the employer, are not employment misconduct.”  Id.

Employers have the right to create and enforce reasonable rules relating to absenteeism.  Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985).  Even if not willful or deliberate, chronic and excessive absenteeism and tardiness may amount to misconduct.  Id.  Failing to comply with attendance policies demonstrates a lack of concern for the employment and generally amounts to disqualifying misconduct.  See Edwards v. Yellow Freight Sys., 342 N.W.2d 357, 359 (Minn. App. 1984) (holding that an employee committed misconduct by repeatedly failing to provide two hours’ notice of absences as required by employer).

Miller worked for HOM from October 6, 2003, to June 21, 2004, as a sales consultant.  During her tenure at HOM, Miller was subject to the store’s attendance policy, which provides that termination occurs after eight or more attendance-related occurrences in a rolling twelve-month period.  By June 2004, Miller had seven attendance-related occurrences attributable to her health, her child’s health, and difficulty securing child care.  On Saturday, June 19, 2004, Miller did not show up for her scheduled shift, which began at 9:00 a.m.  Miller originally fell asleep on her couch on Friday night, June 18, 2004.  She woke up around 2:30 because she was hemorrhaging following a medical procedure and phoned the emergency room.  Miller went into her bedroom and fell back asleep.  Miller did not wake up for work because she uses the alarm clock on her cellular phone, which she left in the living room.  Miller woke up at 11:00 a.m. and was still hemorrhaging.  She sought medical assistance and notified HOM that she would be out for the remainder of the day due to illness.  HOM discharged Miller on June 21, 2004, for excessive absenteeism.

The senior unemployment review judge concluded that HOM discharged Miller for employee misconduct, reasoning that (a) Miller was or should have been aware that her employment was in jeopardy because of her attendance and (b) Miller’s absence on June 19 resulted when she failed to ensure there was a working alarm clock in her bedroom and she overslept.  Although acknowledging that Miller eventually called in sick on June 19, the senior unemployment review judge stated, “[T]he evidence persuades us Miller’s failure to ensure she woke up on time evinced a serious violation of the attendance standards an employer has the right to reasonably expect of an employee and a substantial lack of concern for her employment.”

The senior unemployment review judge erred by concluding that Miller’s absenteeism constituted employee misconduct.  With respect to Miller’s absence on June 19, her failure to set her alarm is attributable to her recovery from a serious medical procedure and is therefore not indicative of willful, chronic, or excessive absenteeism.  The department agrees.  In a letter to this court dated March 2, 2005, the department declined to file a responsive brief in this matter and concluded that Miller’s behavior was not misconduct stating, “In this case, the employer did not have the right to reasonably expect that the employee would call in at the beginning of her shift, given her medical condition, and her acts did not show any lack of concern for her employment.”

In reaching our conclusion, we emphasize that while an employer may be justified in terminating an employee’s employment, that justification may not satisfy the statutory requirements for disqualification of benefits.  “An employer’s standards for discharging an employee for cause may differ from the misconduct standard enunciated in the economic security law.”  St. Williams Nursing Home v. Koep, 369 N.W.2d 33, 34 (Minn. App. 1985); see also Gerr v. Target-Fridley, 382 N.W.2d 231, 233-34 (Minn. App. 1986) (acknowledging an employer’s valid justification for discharge due to chronic absenteeism, but requiring element of culpability before disqualifying employee from benefits).   Most of Miller’s absences are attributable to illness or her inability to find child care, and she always provided notice prior to her shift that she was unavailable to work that day.  See Koep, 369 N.W.2d at 34 (affirming senior unemployment review judge’s decision that employee was qualified for benefits despite ten absences in one calendar year because employee’s absences were due to illness, and employee always provided sufficient notice).  Considering Miller’s history of providing sufficient notice prior to her absences, the final instance of absence due to oversleeping is inadvertence, not misconduct, given her medical condition.  Cf. Evenson v. Omnetic’s, 344 N.W.2d 881, 882-83 (Minn. App. 1984) (affirming finding of misconduct where employee was late reporting for work on three occasions without notice or explanation and took excessively long lunches on four occasions). 


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

[1] Legislative amendments substituted the term “senior unemployment review judge” for the commissioner’s representative for unemployment decisions made on or after August 1, 2004.  2004 Minn. Laws Ch. 183, § 71.

[2] The revisor’s office 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).