C2-99-1244

Gwendolyn J. McCutchan,

Relator,

vs.

Sylvan Learning Systems, Inc.,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed March 14, 2000

Reversed

Lansing, Judge

Minnesota Department of Economic Security

Agency File No. 737UC99

Howard L. Bolter, Borkin, Ramstead, Mariani, Fishman & Carp, Ltd., 485 Northstar East, 608 Second Avenue South, Minneapolis, MN 55402 (for relator)

Sylvan Learning Systems, Inc., c/o Gates McDonald/Gibbens, Attn: Patrick O’Day, P. O. Box 3930, Des Moines, IA 50322-3930 (respondent employer)

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

Considered and decided by Lansing, Presiding Judge, Davies, Judge, and Harten, Judge.

U N P U B L I S H E D OP I N I O N

LANSING, Judge

A discharged technician appeals the denial of reemployment-insurance benefits based on misconduct. The commissioner’s representative found that the technician’s inaccurate time-reporting was unintentional. Because unintentional acts are not misconduct unless the acts demonstrate a substantial lack of concern for the employment, we reverse.

FACTS

Gwendolyn McCutchan worked for Sylvan Learning Systems for approximately five years — from July 1993 until November 1998. In 1998, she was promoted to reconciliation technician, a position paying $12 an hour. Her hours were flexible, but she ordinarily worked Monday through Thursday. She worked a 32-hour week, which, according to McCutchan and Sylvan, was considered a full-time position. Employees were required to keep time sheets that recorded the number of hours they worked, but they were not required to record starting and ending times.

During the two weeks before McCutchan’s discharge, McCutchan’s supervisor received complaints from two of McCutchan’s coworkers that they believed she was not working full eight-hour days. The supervisor compared McCutchan’s time reports for six working days with an access-control report generated by the building security-card access system. On five of the six days, McCutchan overreported her work hours. On the other day, McCutchan underreported her work time. The total discrepancy amounted to approximately four hours of overreported time for the six days, but the record does not contain a comparison for the remaining days in the biweekly pay cycle.

McCutchan’s supervisor and human resources personnel met with McCutchan and discharged her for intentional falsification of time records. McCutchan presented no information to contradict Sylvan’s allegations and acknowledged that she needed to be more careful in keeping track of the hours she had worked. In her appeal from denial of reemployment benefits, McCutchan also stated that at about this same time she was diagnosed with Graves’ disease, a form of hyperthyroidism. McCutchan testified that her condition had temporarily affected her ability to concentrate and had also affected her memory.

A reemployment-insurance judge affirmed denial of McCutchan’s reemployment benefits because of intentional misconduct. On appeal from that denial, the commissioner’s representative found that McCutchan had not intentionally misstated her hours, but that the negligent or unintentional errors were sufficiently significant to demonstrate a substantial lack of concern that amounted to misconduct. McCutchan appeals from the commissioner’s finding of disqualification.

D E C I S I O N

A discharged employee is disqualified from receiving reemployment-insurance benefits if the discharge resulted from misconduct that interfered with and adversely affected employment. Minn. Stat. § 268.095, subd. 4 (1998). Misconduct is defined as intentional conduct that shows a disregard of the employer’s interest, the standards of behavior the employer has a right to expect, or the employee’s duties and obligations to the employer. Id., subd. 6 (1998). The reemployment statute specifically provides that an employee’s negligent or unintentional conduct is not considered misconduct unless the conduct demonstrates a substantial lack of concern for employment. Id. The employer has the burden of proving disqualifying misconduct and must do so by the greater weight of the evidence. Marz v. Department of Employment Servs., 256 N.W.2d 287, 289 (Minn. 1977). We review the factual findings of the commissioner’s representative in the light most favorable to the decision and determine whether evidence in the record reasonably tends to sustain those findings. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).

Intentional falsification of time cards is misconduct that justifies denial of reemployment benefits. Ruzynski v. Cub Foods, Inc., 378 N.W.2d 660, 662 (Minn. App. 1985). But the commissioner’s representative specifically found that McCutchan’s actions were not intentional and instead constituted negligence. We are required to accord particular deference to the commissioner’s findings of fact. Id. Our review of the record supports the commissioner’s findings that McCutchan did not intentionally record her time wrong. Because McCutchan’s conduct was not intentional, it constitutes misconduct only if it demonstrates a substantial lack of concern for employment.

The commissioner’s representative found that even though McCutchan’s conduct was unintentional or negligent, it showed such a degree of disregard for employment that the actions equated to misconduct. We cannot find sufficient evidence in the record to support that conclusion.

First, Sylvan’s lack of formal time-keeping procedures weighs against such a determination. McCutchan’s supervisor testified that some employees filled out their forms in advance; that the supervisor routinely had to go over the forms with employees; and that in the form submitted by McCutchan that resulted in her discharge, the supervisor had observed McCutchan make several changes and cross-outs, including initially indicating that she had worked on one day when she later remembered she had not.

Second, the record does not indicate that McCutchan had been asked to be more careful about her time entries. McCutchan’s file disclosed only one reprimand during her five-year employment, and that reprimand did not relate to keeping track of her hours.

Finally, the record does not demonstrate the number of verified hours for her complete biweekly time report. The evidence showed McCutchan had both overreported and underreported her time. We do not know whether including the final days in the biweekly pay period would have produced a final overreporting of the total number of hours. We further note that it is unclear on this record whether McCutchan was entitled to a lunch period. McCutchan testified that she did not believe she was. Her supervisor said that she thought she was, but she was unsure. If McCutchan was entitled to a lunch break, it is unclear whether the total hours would represent any misreporting that resulted in claiming more time than she had worked.

Although the record supports the commissioner’s representative’s finding that the conduct was unintentional, it does not support a finding that the conduct was so negligent that it demonstrated a substantial lack of concern for the employment. For these reasons, we reverse the disqualification.

Reversed.