This opinion will be unpublished and

may not be cited except as provided by

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






Matthew A. McDonald,





SimonDelivers.Com, Inc.,



Department of Employment and

Economic Development,



Filed September 13, 2005

Klaphake, Judge


Department of Employment and Economic Development

File No. 11903 04


Marshall H. Tanick, Phillip J. Trobaugh, Mansfield, Tanick & Cohen, P.A., 1700 US Bank Plaza Center South, 220 South Sixth Street, Minneapolis, MN  55402-4511; and


Julie H. Vogel, Two Carlson Parkway, #150, Plymouth, MN  55447 (for relator)


SimonDelivers.Com Inc., C/O ADP-UCM/The Frick Company, UC Express (SM), P.O. Box 66744, St. Louis, MO  63166-6744 (respondent)


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 Toussaint, Chief Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator Matthew A. McDonald challenges a decision by a senior unemployment review judge (review judge) that he was disqualified from receiving benefits because he was discharged by respondent SimonDelivers.Com, Inc. for misconduct, specifically for incorrectly reporting the hours that he worked on May 31, 2004.  Relator claims that he did not commit employment misconduct because he did not intend to falsify his time records and because any discrepancy in his time records constituted a “single incident” that had no significant adverse impact on his employer.

            The review judge, however, chose to credit the testimony of relator’s supervisor, who testified that relator left the work site at 11:11 a.m., and to reject relator’s somewhat inconsistent claims that he either remained at work until a little after noon or that he believed that he was getting paid for six hours that day, regardless of the number of hours worked or reported.  Because we defer to the review judge’s credibility determinations and because relator’s intentional falsification of a time record had a significant adverse impact on his employer, we affirm.


            An employee discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4 (Supp. 2003).[1] 
Employment misconduct is defined as follows:

            Employment misconduct means 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.


            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, poor performance because of inability or incapacity, good faith errors in judgment if judgment was required, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.


Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003).[2]

            Relator first claims that the review judge improperly focused on an 8:50 a.m. time entry on the computer delivery input screen, which was not discussed during the hearing and was irrelevant to relator’s start and end times.  While relator’s argument on this point may be correct, that does not mandate reversal of the review judge’s decision:  as relator acknowledges, the issue presented here “is not whether the time records differ but whether [relator] intentionally falsified his manual time card.”  It is undisputed that the times recorded on the three time records (the delivery input screen, the timecard punched by relator’s supervisor when he claims to have observed relator leave the work site on May 31, and the manual timecard filled out by relator two days later) all differ slightly; the issue is whether relator committed misconduct when he filled out his manual timecard, particularly his claimed 12:20 p.m. departure time.

            To the extent that relator offered slightly inconsistent explanations for the discrepancies on his time records, the review judge was entitled to question his credibility.  In one explanation, relator claims that he did not leave work at 11:11 a.m., as the timecard punched by his supervisor indicated, but that he remained to help another driver with a new route and left the worksite around noon or soon thereafter, which corresponds with the 12:20 p.m. departure time he wrote on the manual timecard.  In the other explanation, relator claims that he believed he was being paid for a six-hour workday on the May 31 holiday and that, when his supervisor asked him to fill out the manual time card two days later, he did so to the best of his recollection.

            In the first, relator tends to defend the 12:20 p.m. time entry on his manual timcard; in the second, he acknowledges that he may have been mistaken but claims that he did not intend to falsify his timecard.  Neither explanation was entirely corroborated:  with respect to the first, relator’s supervisor testified that when he questioned the other drivers, none remembered relator remaining at the work site to assist them; with respect to the second explanation, when relator’s supervisor questioned him about the discrepancy on his manual timecard and asked relator why he did not review the information on the data input screen or otherwise ask for assistance, relator stated that he did not know.  Relator did not claim that he believed he was being paid for six hours, nor did he tell his supervisor that he did not know how to fill out a manual timecard because he had never worked a holiday or overtime before.  Given the record here, we conclude that the review judge was entitled to find relator’s explanations not credible.

            Relator next challenges the review judge’s determination that relator “knowingly misrepresented the hours he worked” and insists that the record contains no credible evidence to support a finding of intent on relator’s part to falsify his time records.  Relator claims that his assumption that he was entitled to be paid for six hours that day was reasonable, when he merely saw a notice posted on the employee information board that the day was a six-hour minimum payday and when he had never worked a holiday or filled out a manual timecard before.

            Cases involving misconduct for timecard violations generally involve situations in which the employees have been warned and were well aware that their actions were in violation of policy.  See, e.g., McKee v. Cub Foods, Inc., 380 N.W.2d 233, 236 (Minn. App. 1986); Ruzynski v. Cub Foods, Inc., 378 N.W.2d 660, 662 (Minn. App. 1985).  Moreover, we have reversed determinations of misconduct when the evidence involving the employee’s intent was undisputed.  See, e.g., Riley v. Transp. Corp. of Amer., Inc., 462 N.W.2d 604, 607-08 (Minn. App. 1990) (reversing determination that employee committed misconduct by falsifying timecard when employee received permission to work on his own car and was never notified that he should deduct time spent working on his own car); Tuckerman Optical Corp. v. Thoeny, 407 N.W.2d 491, 493-94 (Minn. App. 1987) (reversing misconduct determination when evidence established that employee, who approved timecards submitted by other employees for inventory work, believed that employees were entitled to be paid for hours they were scheduled to work, even if they finished early).

            Unlike the situation in Thoeny, we cannot conclude that the evidence here undisputedly establishes that relator suffered from a “good faith misunderstanding of the employer’s rules or policies.”  Id. at 493.  To the contrary, relator’s supervisor testified that he observed relator leave the work site at 11:11 a.m., while other evidence in the record casts serious doubt on relator’s explanations for the discrepancies in his time records.  From this record, the review judge could reasonably conclude that relator intentionally misrepresented the number of hours he worked on May 31, 2004.

            Relator finally argues that any discrepancy in his time records constituted a “single incident” that did not have a significant adverse impact on the employer and thus does not rise to the level of employment misconduct as defined in Minn. Stat. § 268.095, subd. 6(a).  Relator notes that his one-and-one-half year work record with SimonDelivers was unblemished and that the incident was not witnessed by anyone else.  He further insists that there is no evidence that his actions in incorrectly filling out the manual timecard had an adverse effect on his employer, when the time discrepancy was less than two hours and when his claimed time was less than the six hours that he reasonably believed he would be paid for.  While this may have been a single incident, we cannot conclude that intentional falsification of a time record, however slight or minimal, does not have an adverse impact on this employer.


[1]  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).  The 2004 statute has been corrected.

[2]  Because relator was discharged prior to August 1, 2004, the 2003 version of the statute controls.  See Brown v. Nat’l Amer. Univ., 686 N.W.2d 329, 332 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).