This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Keith A. Larson,



Economy Garages, Inc.,


Commissioner of Economic Security,


Filed February 24, 1998


Randall, Judge

Department of Economic Security

Agency No. 2382-UC-97

Arne D. Anderson, Bieter & Anderson, 304 Beal Building, 5 North Third Avenue West, Duluth, MN 55802 (for relator)

Economy Garages, Inc., CST of Duluth, Inc., 5391 Miller Trunk Highway, Duluth, MN 55811 (respondent)

Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Forsberg, Judge.[*]



Relator appeals from a decision of a representative of the Commissioner of Economic Security denying him reemployment benefits. We reverse.


Relator Keith Larson was employed as a truck driver for respondent Economy Garages, Inc. (Economy) from October 1994 to February 1997. On January 15, 1997, Larson met with Economy's general manager and requested that he be laid off due to family problems. Larson pointed out that he had been laid off during the previous two winters. The manager agreed to call it a layoff, but informed Larson that he would be on-call, and, if there was work to do, he would be required to do it. Both agreed that Larson would return to full-time work in April 1997.

On February 3 and 4, 1997, Larson was scheduled to work. On February 3, his wife called Economy's manager to report that Larson was ill and would not be coming in

to work. The next day, Larson called the manager and stated that he had a family crisis and could not work that day. On February 5, the manager terminated Larson.

The Department of Economic Security originally determined that Larson was disqualified from receiving reemployment insurance because he voluntarily terminated his employment with Economy without good cause attributable to Economy. Larson appealed this disqualification, and an evidentiary hearing was held before a reemployment insurance judge. The judge concluded that Larson was involuntarily terminated on February 5, 1997, for reasons other than misconduct and found that Larson was not disqualified from receiving benefits. Economy appealed this decision, and a representative of the Commissioner of Economic Security reviewed it. The commissioner's representative determined that Larson voluntarily terminated full-time employment without good cause attributable to Economy when he requested that he be laid off on January 15, 1997. The representative also determined that, rather than being laid off, Larson was placed on-call. Additionally, the representative concluded that Larson was involuntarily terminated for misconduct on February 5, 1997, and that, therefore, he was disqualified from receiving reemployment benefits. Larson petitioned this court for writ of certiorari.


On appeal, the commissioner's representative's findings must be considered "in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them they will not be disturbed." White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). Whether the representative properly determined that an employee was disqualified from receiving reemployment benefits is a question of law reviewed de novo. Ress v. Abbott Northwestern Hosp., Inc. 448 N.W.2d 519, 523 (Minn. 1989).

A claimant who "voluntarily and without good cause attributable to the employer discontinued employment with such employer" is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(a) (1996). A claimant who is involuntarily terminated for misconduct is also disqualified from receiving benefits. Id., subd. 1(b).

I. Voluntary Termination

It is the employer's burden to prove the employee voluntarily terminated his employment. Marz v. Department of Employment Servs., 256 N.W.2d 287, 289 (Minn. 1977). This court has stated that whether an employee voluntarily terminated employment is a question of fact. Midland Elec., Inc. v. Johnson, 372 N.W.2d 810, 812 (Minn. App. 1985). Larson argues that the commissioner's representative's determination that he terminated full-time employment in January is a conclusion of law because it results from the application of a legal holding to these particular facts. We agree.

The representative did make factual findings on Larson's request to be laid off, but concluded that this was a voluntary quit after applying the holdings of Honeywell, Inc. v. Hoyhtya, 400 N.W.2d 818, 821 (Minn. App. 1987) and Hogenson v. Brian Knox Builders, 361 N.W.2d 163, 165 (Minn. App. 1985). This was a conclusion of law, and conclusions of law are reviewed de novo by this court. Ress, 448 N.W.2d at 523.

Larson also argues that his due process rights were violated because he had no opportunity to be heard on the issue of whether or not his separation was voluntary or involuntary. See Schulte v. Transportation Unlimited., 354 N.W.2d 830, 832 (Minn. 1984) (noting that "[u]nemployment benefits are an entitlement protected by the procedural due process requirements of the fourteenth amendment"). Larson asserts that Economy admitted at the evidentiary hearing that the separation was involuntary; therefore, no other testimony or evidence was introduced to prove involuntary separation.

Larson's due process rights were not violated. First, it seems Larson is confused regarding the representative's decision. The representative determined that Larson voluntarily terminated only full-time employment. The representative concluded he was discharged from on-call employment for misconduct. Second, Larson was given an opportunity to present his case at the evidentiary hearing. At that hearing, the parties agreed that Larson was involuntarily terminated on February 5, 1997, and both Larson and Economy's manager explained what happened at the January 15, 1997, meeting when Larson asked about a layoff. Although the reemployment judge did not address the voluntariness of Larson's removal from full-time employment in January 1997, the commissioner's representative reviewed the hearing testimony, and her conclusions were based on the evidence presented at the hearing.

The focal point of Larson's argument regarding the voluntariness of his termination is his assertion that the representative erred in concluding that Larson voluntarily quit full-time employment on January 15, 1997. We have previously concluded that an employee who requests a reduction in hours from full-time to part-time has voluntarily separated himself from full-time employment. Honeywell, 400 N.W.2d at 821; Hogenson, 361 N.W.2d at 165. This court has also held that where an employee requested an early layoff from seasonal work for personal reasons, the employee voluntarily quit employment. E.H. Schrupp & Assocs., Inc. v. Stansberry, 412 N.W.2d 808, 809-10 (Minn. App. 1987).

In Honeywell, an employee who worked full-time as a writer/producer requested a reduction in hours and was given part-time work. 400 N.W.2d at 820. She applied for reemployment benefits when she was informed that the company no longer had any work for her as a writer/producer. Id. In reversing the commissioner's decision, this court concluded that the employee voluntarily terminated full-time employment by requesting a reduction in hours. Id. at 821.

In Hogenson, relator requested a two-week leave of absence to participate in moto-cross racing. 361 N.W.2d at 164. Following his request, his employer gave him the option to work full-time or part-time, on-call, and he chose to work part-time. Id. He applied for reemployment benefits after he did not receive any work assignments for one week. Id. This court affirmed the commissioner's finding that relator had voluntarily terminated full-time employment and affirmed the denial of benefits. Id. at 165.

There is no question that Larson requested to be laid off on January 15, 1997, and it is clear Larson wanted to be laid off for personal reasons. Despite the fact that Larson was involuntarily laid off in previous years and that he explained this to the new manager, nothing in the record indicates that Economy had specifically determined to lay Larson off during the period he requested. Thus, it appears Larson volunteered to separate himself from full-time employment. Unlike Hogenson and Honeywell, however, Larson requested a layoff and not a reduction in hours. Additionally, Larson requested a layoff for a specific period of time. The record indicates that both parties knew this and both parties were aware that Larson would return to full-time work in April 1997.

Larson insists he was laid off, while the representative found that Larson was placed on-call. Larson explains he merely asked Economy's manager if he would be laid off again, as he had been the past two years. He notes that the employer admits to telling Larson he was laid off. Larson contends that he interpreted this to mean temporary drivers would be used first, and he would be used only if they were unavailable. He asserts that this understanding is inconsistent with being on-call. Economy's manager testified that he agreed to call it a layoff, but informed Larson that "when we have work to do, you work, it's on call." The manager also testified that he believed they had an understanding that "on a daily basis, if there was work, he'd work, if not, then [he] wouldn't have to be at work."

The real question is not what label the reduction in hours was given (laid off or on-call), but how the agreement was actually carried out. Regardless of Larson's belief that temporary drivers would be used before him, temporary drivers were not used ahead of Larson. Economy did not actually reduce Larson's hours any more than his hours would have been reduced without his request. In fact, the record indicates Economy called him in to work anytime work needed to be done. This is inconsistent with a voluntary quit. Unlike the employer in Stansberry, Larson's employer did not actually grant his request for a layoff. Thus, we conclude that the representative erred in determining that Larson voluntarily terminated his full-time employment.

II. Misconduct

The commissioner's representative determined that Larson was discharged from his employment altogether due to misconduct. The representative stated that this was because Larson did not report for work as scheduled on February 3 and 4, 1997, and because he did not comply with the call-in policy on February 3. The representative determined that by failing to return his employer's call on February 3, Larson committed an act of disqualifying misconduct.

A determination of employee misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). A reviewing court will affirm if the evidence supports the findings of fact and if "the conclusion on those facts is not contrary to the statutory mandate." Id. It is the employer's burden to show that the employee is disqualified from receiving reemployment benefits due to misconduct, and "[t]he employer must establish by the greater weight of the evidence that the employee was guilty of the misconduct charged." Lumpkin v. North Cent. Airlines, Inc., 296 Minn. 456, 459-60, 209 N.W.2d 397, 400 (1973).

The supreme court has defined misconduct as

"conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer."

Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (quoting Boynton Cab Co. v. Neubeck, 296 N.W. 636, 640 (1941)). Misconduct is not

"mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion * * *."

Id. at 375, 204 N.W.2d at 646 (quoting Boynton Cab Co., 296 N.W. at 640).

Excessive absences may evidence misconduct as a matter of law regardless of whether willfulness is shown. McLean v. Plastics, Inc., 378 N.W.2d 104, 107 (Minn. App. 1985). This court has stated that excessive absences, even if not willful or deliberate, can show a lack of concern for a job and demonstrate negligent behavior toward an employer. Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985).

An isolated incident may constitute misconduct if it shows sufficient disregard for an employer's expectations. Blau v. Masters Restaurant Assocs., Inc., 345 N.W.2d 791, 794 (Minn. App. 1986).

Here, the commissioner's representative compared this case to McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592 (Minn. 1988). In that case, McGowan was a freight coordinator and van driver for a freight-delivery service. McGowan, 420 N.W.2d at 593. Her employer requested that she pick up a prescription for his personal use, but she refused to do so, saying it was not part of her job. Id. The supreme court concluded that McGowan's refusal was "deliberate, calculated and intentional." Id. at 596. The court emphasized, "One in charge of a business must be allowed to expect that reasonable orders will be followed." Id.

The representative also cited Winkler v. Park Refuse Serv., Inc., 361 N.W.2d 120 (Minn. App. 1985), in support of her decision in this case. There, Winkler was arrested and incarcerated. Id. at 122. He instructed his wife to ask his work partner to inform their employer that he had a family emergency, and his partner did inform their employer. Id. Over the next three days, Winkler's employer telephoned Winkler's wife twice, and she stated she did not know when he would return. Id. The employer finally learned of Winkler's incarceration from a third party and spoke to Winkler in jail. Id. The employer agreed to hold Winkler's job until a certain date but replaced him when he did not report to work on the date that the employer believed Winkler had agreed to return. Id. This court explained that it is reasonable for an employer to "expect an employee to keep it apprised of his whereabouts. Without this information, an employer cannot adequately plan its staffing needs." Id. at 123.

Here, Larson was scheduled to work February 3 and 4, 1997. On February 3, his wife called his employer and reported that Larson was ill. The manager requested that she tell Larson to call in himself, but Larson never called. There is no evidence indicating whether Larson's wife informed him of the manager's request. There is also nothing in the record indicating that Economy had a policy requiring the employees themselves to call. The manager admitted at the evidentiary hearing that he did not think there was a policy, and Larson commented that his wife had called in for him in the past. We cannot hold that when an employee's spouse calls the employer to report that the employee will not be reporting to work due to illness, and there is no specific policy forbidding a spouse to call, that this, by itself, can be called willful and intentional disregard of the employer's interest. See Tilseth, 295 Minn. at 374, 204 N.W.2d at 646 (defining misconduct as "wilful or wanton disregard of an employer's interests").

Economy argues that Larson's absences on February 3 and 4, along with previous warnings for absenteeism, constitute disqualifying employment misconduct. Although there is evidence that Larson was absent January 13 and 14, 1997, and at least three Mondays during November and December 1996, the record does not reflect exactly how many absences he accrued or the reasons for those absences. There is evidence that Economy's manager discussed the problem with Larson during their January 15 meeting, but there is no evidence that Larson was ever warned that any further absences without a prior approval, even with a legitimate excuse, could result in termination. The record does not support a finding that Larson was excessively absent, and more importantly, the commissioner's representative did not make such a finding.

Unlike the employee in McGowan, Larson did not refuse to follow orders, and, unlike the employee in Winkler, his employer knew of his whereabouts. The commissioner's representative erred in concluding that Larson committed misconduct.

Larson did not commit misconduct on February 5, 1997, to the point that he can be denied reemployment benefits. We conclude that the commissioner's representative erred in determining that Larson was disqualified from receiving reemployment benefits.


[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. IV, § 10.