This opinion will be unpublished and

may not be cited except as provided by

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






Anthony K. Gephart,





Safety Signs, LLC,



Department of Employment and Economic Development,



Filed April 25, 2006


Forsberg, Judge*


Department of Employment and Economic Development

File No. 869505



Anthony K. Gephart, 19682 Jaguar Avenue, Lakeville, MN 55044 (pro se relator)


Safety Signs, LLC, 19784 Kenrick Avenue, Lakeville, MN 55044 (respondent)


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


            Considered and decided by Worke, Presiding Judge; Toussaint, Chief Judge; and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N


Relator Anthony Gephart challenges the decision of the unemployment law judge (ULJ) that he is disqualified for benefits because he quit his employment.  Because the ULJ’s findings, inferences, conclusion, and decision are not affected by an error of law and are supported by substantial evidence, we affirm.


Relator worked for respondent Safety Signs, LLC from May 2000 until January 10, 2005.  Because respondent’s work was largely seasonal, it gave its employees two options for the winter months: they could either work in respondent’s shop and collect their full wage or claim to be laid off and collect unemployment.[1]  During the winters of 2000-2001, 2001-2002, 2002-2003 and 2003-2004, relator chose the first option by working in the shop and receiving his full wage.  On January 10, 2005, he chose the second option.  He told respondent he wanted to catch up on projects and take some time off, and stopped going to work.  On March 18, 2005, relator was recalled to work.  He refused to return and told respondent he had a new job; he began the new job on April 30.

Relator applied for unemployment benefits, saying he had been laid off from his job.  A department adjudicator determined that relator was qualified for benefits until March 18 but disqualified from March 18 to April 30.  Relator appealed.  After a telephone hearing and de novo review, the ULJ found that relator had not been laid off in January but had quit and was therefore disqualified from January 10 to March 18 as well as from March 18 to April 30.  Relator sought reconsideration; the ULJ affirmed his earlier decision.  Relator now challenges only the determination that he was not entitled to benefits from January 10 to March 18 because he had quit his employment.

The legislature has provided that this court may affirm the ULJ’s decision, remand it for further proceedings, or reverse or modify it

if the substantial rights of the petitioner may have been prejudiced because the findings, inferences, conclusion or decision are:

(1)    in violation of constitutional provisions;

(2)    in excess of the statutory authority or jurisdiction of the department;

(3)    made upon unlawful procedure;

(4)    affected by other error of law;

(5)    unsupported by substantial evidence in view of the entire record as submitted; or

(6)    arbitrary or capricious.


Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005).  “Whether an employee has been discharged or voluntarily quit is a question of fact.”  Midland Elec., Inc. v. Johnson, 372 N.W.2d 810, 812 (Minn. App. 1985).  

Both “discharge” and “quit” are defined by statute.  A discharge “occurs when any words or actions by an employer would lead a reasonable employee to believe that the employer will no longer allow the employee to work for the employer in any capacity.”  Minn. Stat. § 268.095, subd. 5(a) (2004).  A quit “occurs when the decision to end the employment was, at the time the employment ended, the employee’s.”  Minn. Stat. § 268.095, subd. 2(a) (2004); see also Wing-Piu Chan v. Pagoda, Inc., 342 N.W.2d 174, 175 (Minn. App. 1984) (holding that whether an employee quit or was discharged “is determined, not by the immediate cause or motive for the act but by whether the employee directly or indirectly exercised a free-will choice and control as to the performance or non-performance of the act”) (quotation omitted).

But an employee who quits “because the employer notified the [employee] that the [employee] was going to be laid off due to lack of work within 30 calendar days” is not disqualified from receiving benefits.  Minn. Stat. § 268.095, subd. 1(6) (2004).  Thus, a layoff is easily distinguishable from a quit: in a layoff the decision is the employer’s, but in a quit the decision is the employee’s.

Relator decided to stop working for respondent in January 2005 and informed respondent of that fact.  Relator testified that he told his supervisor, “I think I want to take the lay off . . . I’ll take the lay off.”  When asked if he understood that he could have continued working, relator answered, “Exactly.”  He responded, “Exactly,” again when the ULJ said “You knew there was work available that you could perform.”   Relator was not being laid off due to lack of work; respondent had work available for him.  Although relator describes what he did as “taking a layoff,” it fell within the statutory definition of quit because he, not respondent, made the decision that he would not work.

The finding that relator quit within the meaning of the statute is supported by the evidence and is not affected by an error of law.


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

[1] As DEED points out, employers do the system a disservice by permitting employees who could be working to choose not to work, claim that they have been laid off, and apply for benefits.  The practice is arguably a violation of Minn. Stat. § 268.069, subd. 2 (2004) (providing that “any agreement between an applicant and an employer shall not be binding on the commissioner in determining an applicant’s entitlement” to benefits).