C5-02-326

Kim A. Rime,

Relator,

vs.

Crysteel Truck Equipment Inc.,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed October 8, 2002

Affirmed

Hudson, Judge

Department of Economic Security

File No. 922201

David H. Bailly, David H. Bailly, Ltd., 1900 Interchange Tower, 600 South Highway 169, Minneapolis, Minnesota 55426 (for relator)

Crysteel Truck Equipment Inc., 1130 73rd Avenue Northeast, Fridley, Minnesota 55432 (respondent)

Linda A. Holmes, Department of Economic Security, 390 North Robert Street, St. Paul, Minnesota 55101 (for respondent Commissioner)

Considered and decided by Anderson, Presiding Judge, Toussaint, Chief Judge, and Hudson, Judge.

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

HUDSON, Judge

Relator’s employer required him to obtain a driver’s license so that he could operate a truck in connection with a new job requirement. Relator was discharged after he failed to obtain a driver’s license and now challenges a decision by respondent Commissioner of Economic Security disqualifying him from receiving unemployment benefits. We affirm.

FACTS

In 1985, Kim Rime’s driver’s license was suspended and/or revoked due to multiple alcohol-related driving offenses. In September 1997, Crysteel Truck Equipment Inc. (Crysteel) hired Rime as a yardman. Initially, Rime’s position involved some limited driving on the employer’s premises—including crossing a public road. Although a license was required in his job description, Rime was hired without one, and for almost four years, he was never required by his employer to get a driver’s license. Crysteel, however, planned to open a new warehouse in July 2001. The new warehouse was approximately one block from the yard where Rime worked, and therefore Rime needed a valid license to drive to and from the new warehouse. As a result, in May 2001, Crysteel informed Rime that he needed a driver’s license.

In early June 2001, Crysteel changed management and James Wyatt, Crysteel’s operations manager, again told Rime that a driver’s license was required. Crysteel felt Rime was “a real good employee” and “didn’t want to lose him,” but because Rime would be required to periodically drive to and from the new warehouse on a public road, Crysteel knew a license was necessary. Wyatt told Rime he had 30 days to get the license and that Crysteel would be “more than happy” to assist him, including assisting Rime financially.

About two or three weeks later, Wyatt reminded Rime that he needed to get the license. Rime responded by telling Wyatt that he did not intend to get a license and that he did not think he needed one because he had been doing the job without one for four years. Wyatt explained Crysteel’s reasons for enforcing this requirement, and Rime suggested that this amounted to an increased workload and continued to refuse to get the license. When informed by Crysteel that his job was in jeopardy if he failed to obtain a license, Rime said that Crysteel “would have to do whatever [it] had to.” Rime was then told that his job would be posted in-house, and Rime said “whatever” and walked away.

Rime established a benefit account with the Minnesota Department of Economic Security. On August 7, 2001, the department determined that Rime was disqualified from receiving benefits. On appeal, the unemployment law judge reversed the department’s determination, finding that Rime’s conduct did not constitute employment misconduct because “his present inability to clear his record and get the license necessary to retain his employment is for reasons beyond his control.” On appeal, the commissioner’s representative reversed, finding that Rime’s conduct was employment misconduct because he refused a reasonable request from his employer. This appeal followed.

D E C I S I O N

Minn. Stat. § 268.095, subd. 4 (2000), provides for disqualification from unemployment benefits when the applicant is discharged because of employment misconduct. Employment misconduct is defined as:

(1) any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee’s duties and obligations to the employer; or (2) negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.

Minn. Stat. § 268.095, subd. 6(a) (2000).

On appeal, this court examines the decision of the commissioner’s representative, rather than that of the reemployment insurance judge. Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997). Decisions of the commissioner’s representative are accorded particular deference. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).

Rime does not raise any fact questions regarding the events surrounding his termination. Whether an employee’s acts constitute misconduct is a question of law upon which reviewing courts remain free to exercise their independent judgment. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

Rime argues that his failure to get a driver’s license was not misconduct because he was unable to get his license in the time allotted. Specifically, Rime claims he owed monetary damages and had to comply with certain rehabilitation requirements mandated by the Department of Transportation (DOT), including completing chemical dependency treatment, abstinence for at minimum one year, and participating in a weekly support group for 12 consecutive weeks. But Rime did not raise the DOT issue below. At the hearing before the unemployment law judge, Rime vaguely alluded to having to “jump through 18 hoops” with the DOT to get his license back; but he put in no evidence regarding any specific DOT rehabilitation requirements. Rime has waived this issue on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (reviewing court may not consider issues raised for first time on appeal).

But even if Rime’s vague references to the DOT requirements were sufficient to preserve this issue on appeal, we find that his refusal to obtain a driver’s license constituted misconduct. Generally, if an employer makes a request that is reasonable and does not impose an unreasonable burden on the employee, a refusal will constitute misconduct. Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985). Although there are no Minnesota cases with regard to the reasonableness of a request to get a license of any sort, we assess the reasonableness of each request on a case-by-case basis. Id.

Here, Crysteel’s request was reasonable because it was directly related to Rime’s job requirements and because driving without a license is an illegal act. See Minn. Stat. § 171.24, subds. 1, 2 (2000). In addition, Crysteel was willing to assist Rime in acquiring the license, including assisting him financially. Crysteel did not condition its offer of assistance in any way. Nevertheless, Rime chose not to discuss with his employer the obstacles—DOT-imposed or otherwise—he claimed he faced in obtaining his license. Indeed, nothing in the record suggests that Rime even contacted the DOT to discuss his situation, or that he made any effort at all to obtain his license. On these facts, his intentional refusal to obtain his license constituted misconduct.

Rime also argues that because of his long DWI/relapse history, he has consciously chosen not to have a license for the good of himself and others, and that public policy dictates that he not be denied unemployment benefits because of that decision.[1] But at the time Rime refused to get his license, he was already driving the employer’s vehicles on private property, as well as driving across a public street, as part of his job. Rime seems to suggest that he will not relapse if he continues driving without a license, but will relapse if he gets a license. We find no merit in this argument. Moreover, Rime testified that, historically, the offenses that caused him the most trouble in getting his license back were DWI offenses that occurred when he drove without a license. Thus, foregoing a license would not necessarily protect Rime or the public.

Finally, we recognize that an employer’s request for an employee to get a driver’s license may not always be reasonable. But here, where: (1) the request was reasonable on its face and directly related to Rime’s job requirements; (2) Rime was violating the law by driving the employer’s vehicles without a license; (3) Rime flatly stated he would not obtain a license and repeatedly demonstrated indifference to the employer’s request; and (4) the employer was unaware of the alleged DOT obstacles related to the request, the request was reasonable, and Rime’s refusal to obtain a driver’s license constituted misconduct.

Affirmed.

[1] The test of reasonableness of an employer’s request must take into consideration whether an employer’s request is consistent with public policy. Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 92 (Minn. App. 1985).