This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-96-2586

Kory J. Olson, Relator,

vs.

Distribution Centers Transport, Inc.,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed May 20, 1997

Affirmed

Short, Judge

Department of Economic Security

File No. 6500UC96

Scott L. Anderson, 4101 Sunset Road, Brooklyn Park, MN 55443 (for relator)

Dawn M. Parsons, 5200 West 73rd Street, Edina, MN 55439 (for respondent Distribution Centers Transport, Inc.)

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

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Klaphake, Judge.

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

SHORT, Judge

Kory J. Olson filed for reemployment insurance benefits after his employer, Distribution Centers Transport, Inc. (employer), discharged him for excessive tardiness and absenteeism. A claims adjudicator determined Olson was discharged for willful misconduct. After a reemployment insurance judge reversed the adjudicator's decision, the employer appealed to the Commissioner. The Commissioner's representative found Olson guilty of misconduct and, thus, not qualified to receive benefits. On a writ of certiorari, Olson argues the representative's decision is without record support. We affirm.

D E C I S I O N

The reemployment insurance fund is available to persons involuntarily "unemployed through no fault of their own." Minn. Stat. § 268.03 (1996); White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). An employee discharged for misconduct is therefore disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(b) (1996). The employer has the burden of proving the employee's misconduct. Ress v. Abbot Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). On appeal, this court reviews the findings of the Commissioner's representative, not those of the reemployment judge. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). Our review of the Commissioner's factual findings is limited to whether the evidence, viewed in the light most favorable to the decision below, supports the decision, but we review de novo the question of whether the facts, as found by the Commissioner, constitute misconduct. Ress, 448 N.W.2d at 523.

Olson argues there is insufficient evidence to support the Commissioner's decision that Olson engaged in misconduct. However, the employer's attendance rules provide: (1) excessive absenteeism (more than six days) and tardiness (more than three incidents) will result in disciplinary action, including termination; and (2) an employee must notify the employer before a scheduled shift if the employee will be late. It is undisputed that Olson was aware of the employer's attendance rules.

The record also demonstrates: (1) in December 1995, the employer issued an oral and written warning to Olson that his attendance record was unacceptable and his absenteeism must be brought under control; (2) Olson took unscheduled leave from work 11 times from June 12, 1995, through December 7, 1995; (3) during the first five months of 1996, Olson received several verbal warnings regarding his unacceptable attendance record; (4) during the first six months of 1996, Olson reported to work late at least 30 times; (5) during Olson's last week on the job, he reported to work 19 minutes late on June 24, 1996, and 24 minutes late on June 26, 1996; and (6) on May 1, 1996 and June 27, 1996, he called in sick after the start of his scheduled shift.

Given these facts, there is ample evidence Olson repeatedly and knowingly violated his employer's attendance policies. Olson's conduct exhibits a disregard for the standards of behavior that an employer has the right to expect, and constitutes misconduct under Minn. Stat. § 268.09, subd. 1(b). See Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (defining misconduct as "such willful or wanton disregard of an employer's interests as is found in deliberate violation or disregard of [an employer's] standards of behavior * * *") (citation omitted); Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984) (holding employers have the right to expect employees to work when scheduled); see, e.g., Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984) (concluding waitress committed misconduct by leaving work early). Under these circumstances, the Commissioner properly disqualified Olson from receiving reemployment benefits.

Affirmed.