This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Masterson Personnel Inc.,


Julie A. Beck,

Department of Employment and Economic Development,


Filed September 11, 2007

Reversed; motion denied

Minge, Judge


Department of Employment and Economic Development

File No. 4297 06



T. Michael Kilbury, Peterson, Logren & Kilbury, P.A., 315 Wright Building, 2233 University Avenue West, St. Paul, MN 55114 (for relator)


Julie A. Beck, P.O. Box 1702, St. Paul, MN 55101 (pro se respondent)


Lee B. Nelson, Linda A. Holmes, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent department)


            Considered and decided by Willis, Presiding Judge; Minge, Judge; and Hudson, Judge.


U N P U B L I S H E D  O P I N I O N


MINGE, Judge


            By writ of certiorari, relator-employer challenges the unemployment law judge’s (ULJ) decision approving unemployment benefits for respondent-employee.  Relator argues that the ULJ erred in concluding that respondent was not discharged for employment misconduct.  Based on the stage of the benefit-payment process, respondent Department of Employment and Economic Development moved to dismiss the appeal.  We reverse and deny the Department’s motion.



            Respondent Julie Beck worked for relator Masterson Personnel Inc., a temporary staffing employer, from July 21, 2005, until February 27, 2006.  While working for relator, Beck was assigned to a payroll position at ERCOA Industries Inc.  Over the course of her seven-month employment period, Beck missed 18 days of work and was late for work and left work early several times.  The reasons for Beck’s absences, tardiness, and early departures vary. 

            As a result of Beck’s attendance problems, relator issued her oral and written warnings.  On February 17, 2006, Beck and relator executed a last-chance employment agreement.  Noting Beck’s prior absences, tardiness, and early departures from work, the last-chance agreement provides:

1.  Julie Beck agrees to be on time for work, not leave work early and not miss any work without prior approval from her supervisor.  If prior approval cannot be obtained due to no fault of Julie then she will provide written documentation within 24 hours explaining the reason for her absence or tardiness.


2.  If Julie Beck is absent or tardy without approval then [relator] may terminate her employment or take other less drastic action at its discretion.


            Several days after signing the agreement, Beck was notified that her fiancé had collapsed while working in Indianapolis.  Beck faxed relator, stating that she would be absent from work for two days to pick up her fiancé.  Because of that two-day absence, relator terminated Beck’s employment. 

            Following her termination, Beck applied for and a Minnesota Department of Employment and Economic Development (DEED) adjudicator determined that she was entitled to unemployment benefits.  Relator appealed, and the ULJ affirmed the DEED adjudicator’s determination, concluding that Beck was not discharged because of employment misconduct.  Relator then filed a request for reconsideration, and the ULJ affirmed his prior decision. 

            Relator petitioned for certiorari review.  After relator filed its brief, respondent DEED filed a motion to dismiss this appeal, arguing that relator seeks relief that cannot be granted on appeal.  By a special-term order, respondent DEED’s motion was deferred for determination by this panel.




            The first issue is whether dismissal of this appeal is warranted because relator seeks relief that this court is unable to grant.  Because appellate courts will only consider live controversies, “[i]f [we are] unable to grant effectual relief, the issue raised is deemed to be moot resulting in dismissal of the appeal.”  In re Schmidt, 443 N.W.2d 824, 826 (Minn. 1989).  Respondent DEED argues that because benefits have been paid and cannot be recaptured, dismissal is proper. 

            Minn. Stat. § 268.047, subd. 3(3) (2004), states that “[u]nemployment benefits paid shall not be used in computing the future tax rate of a taxpaying base period employer when . . . the employer discharged the applicant from employment because of employment misconduct as determined under section 268.095.”  Minn. Stat. § 268.105, subd. 7(d) (2006), grants this court authority to reverse or modify the ULJ’s misconduct determination.  If we determine that Beck was discharged because of employment misconduct and reverse or modify the ULJ’s decision, as relator requests, the payment of unemployment benefits to Beck may not be used in computing relator’s future tax rate.  Here, reversal of the ULJ’s decision would have a direct financial benefit to relator.  Because we are able to grant relator material relief, we deny respondent DEED’s motion to dismiss.    


            The next issue is whether the ULJ erred in concluding that Beck was not discharged because of employment misconduct.  We may affirm, remand, reverse, or modify the ULJ’s decision “if the substantial rights of the petitioner may have been prejudiced because the findings, inferences, conclusion, or decision are,” “affected by . . . error of law [or] . . . unsupported by substantial evidence in view of the entire record as submitted[.]”  Minn. Stat. § 268.105, subd. 7(d)(4), (5).

            Whether an employee has engaged in conduct disqualifying her from unemployment benefits is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  The question of whether an employee actually engaged in acts, actions, or a pattern of conduct are questions of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  But whether those actions constitute employment misconduct is a question of law, which we review de novo.  Id. 

            An employee terminated for “employment misconduct” is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4 (Supp. 2005).  Minnesota law defines “[e]mployment misconduct” as:

[A]ny intentional, negligent, or indifferent conduct, on the job or off the job (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment.


Minn. Stat. § 268.095, subd. 6(a) (2004).  This definition of employment misconduct is “exclusive and no other definition . . . appl[ies].”  Minn. Stat. § 268.095, subd. 6(e) (2004).

            The question is whether, based on all the facts, both as found by the ULJ and as contained in the record and not in dispute, Beck’s two-day absence to transport her fiancé from Indianapolis constituted employment misconduct.  Employers have the “right to expect an employee to work when scheduled.”  Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984).  “Absence from work under circumstances within the control of the employee . . . has been determined to be misconduct sufficient to deny benefits.”  Jenkins v. Am. Express Fin. Corp., 721 N.W.2d 286, 290 (Minn. 2006).  See also Prickett v. Circuit Sci., Inc., 518 N.W.2d 602, 605 (Minn. 1994); Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985).  These cases, together, indicate that an employee’s excessive absenteeism either constitutes a serious violation of the standards of behavior the employer has the right to expect or displays the employee’s substantial lack of concern for her employment.

            But not all absences constitute misconduct.  Minn. Stat. § 268.095, subd. 6(a), establishes several exceptions:

[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.


Our cases have held that absences “due to circumstances beyond [the employee’s] control” do not constitute misconduct.[1]  Because under some circumstances Minnesota law permits employees to be absent from work without risking their unemployment-insurance eligibility, our consideration of whether an employee’s absenteeism constitutes misconduct requires us to analyze the totality of the circumstances, including the reasons for the employee’s absences.  Here, this is a question of law.  We assume the facts as found by the ULJ and otherwise rely on those portions of the record that are not in dispute.  We necessarily balance the employee’s interest and reason for being absent from work with the employer’s interest in its employee working as scheduled.  The more an employee is absent from work, the more significant each successive absence becomes.  And because the purpose of the Minnesota unemployment-insurance program is to provide for unemployed workers “who are unemployed through no fault of their own,” Minn. Stat. § 268.03, subd. 1 (Supp. 2005), we also consider the degree of control that the employee had over her absence. 

            Many of Beck’s absences were due to her or her son’s medical problems.  With “proper notice,” Beck’s and her minor son’s health-related absences from work are explicitly allowed for under the statute.  Minn. Stat. § 268.095, subd. 6(a) (“[A]bsence because of illness or injury with proper notice to the employer, [is] not employment misconduct.”); see also Family and Medical Leave Act of 1993, 29 U.S.C. § 2612 (2000); Minn. Stat. § 181.9413 (2006) (designating the family-member illnesses and injuries for which eligible employees are entitled to be absent).  Several of Beck’s absences and incidents of tardiness, including her trip to a veterinarian, death of her pet, travel to a cousin’s funeral in South Dakota, and travel to Nebraska to visit a daughter who was moving to Texas, are household or family matters.  Similarly, Beck’s problems getting her son to school are personal.  Although employees inevitably encounter personal problems and individually such absences, if reasonable, would not constitute misconduct; here, as time passed it was increasingly Beck’s responsibility to deal with those personal problems consistently with her employment obligation.

            Furthermore, we note that several of Beck’s absences were never explained and that, collectively, all the absences and tardiness created an egregious situation.  This led to the employer’s requirement that Beck sign the last-chance agreement.  Only one week after relator and Beck executed a last-chance agreement, Beck missed two days of work to drive her fiancé home from Indianapolis.  Apparently, he had collapsed at a trade show, and no one was available to assist him.  Even if the statute is read to include an absence due to the illness of a fiancé, the statute still requires “proper notice.”  Minn. Stat. § 268.095, subd. 6(a).  The last-chance agreement provides that, without “prior approval,” the employer “may terminate.” 

            Beck typically called when she expected to be absent.  For the trip to Indianapolis to pick up her fiancé, Beck sent relator fax messages to explain her absences.  Although this may have been prior notice, it was a one-way communication.  Nothing in the record suggests that Beck sought to obtain prior approval or attempted to discuss with relator or with ERCOA Industries problems that her absence might create.  “Proper notice” may require consultation.  Beck did not provide any evidence that she could not have consulted with her supervisor or obtained prior approval before driving to Indianapolis.  Having recently signed a last-chance agreement and given her extensive record of absenteeism, Beck had a responsibility to consult with her employer with respect to any future absences if at all possible. 

            We do not suggest that an employee’s absence from work to retrieve an injured fiancé or family member who has no alternative means of transportation normally constitutes misconduct.  Our holding is more limited.  We only conclude that in light of the circumstances, including Beck’s history of tardiness and absenteeism, her signing the last-chance agreement, and her going to Indianapolis without any prior consultation and without showing that such consultation was impossible; Beck displayed a substantial lack of concern for her employment and that this constituted employment misconduct.  Accordingly, we conclude that the ULJ erred in determining that Beck was not discharged for employment misconduct, and we reverse.

            Reversed; motion denied.



[1] Relator cites several Minnesota cases in support of the proposition that absenteeism qualifies as employment misconduct under Minn. Stat. § 268.095, subd. 6(a), all of which precede the legislature’s primary codification of the definition of employment misconduct.  See 1997 Minn. Laws ch. 66, § 49, at 387;  1999 Minn. Laws ch. 107, § 44 at 424; 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 13, at 1473-74.  Respondent DEED disputes the force of this caselaw.  Respondent DEED is correct.  However, we note that the prior caselaw which is cited is not in conflict with the current statute.  In fact, a substantial part of the definition of “employment misconduct” codified by the legislature at Minn. Stat. § 268.095, subd. 6(a), was adopted from preexisting Minnesota caselaw.  Compare Minn. Stat. § 268.095, subd. 6(a), with McCourtney v. Imprimis Tech., Inc., 465 N.W.2d 721, 724 (Minn. App. 1991) (defining employment misconduct based on the definition adopted by the supreme court in Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973)).  Furthermore, Minnesota courts have regularly cited cases decided prior to the current codification when reviewing ULJ employment-misconduct determinations.  See, e.g., Jenkins, 721 N.W.2d at 290; Bray v. Dogs & Cats Ltd., 679 N.W.2d 182, 184 (Minn. App. 2004).