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Attendance, safety problems bar unemployment benefits

Lack of timely attendance and creating safety hazards are two of the recurring reasons employees lose their jobs.

When these situations occur absent employees or scofflaws who pose safety risks in the workplace also usually lose their rights to unemployment compensation benefits in Minnesota.

A quintet of discharged employees experienced this reality during the first quarter of 2015.  The Minnesota Court of Appeals upheld five decisions by the Department of Employment & Economic Development (DEED), which oversees the unemployment compensation system in this state, rejecting claims for benefits by the claimants on grounds of disqualifying “misconduct” under Minn. Stat. §260.095, subd. 6(a).

All of the cases showed some similarities. Each employee was discharged after prior warnings for their transgressions, Unemployment Law Judges (ULJ) with DEED denied their applications for benefits, and the appellate court affirmed all of them.

Absent Appeals

Performing poorly on the job is a sure fire way of getting fired. But not performing at all because of not showing up for work, often leads to discharge as well.

When this occurs, most absent employees who seek unemployment compensation benefits lose their claims, as experienced by a pair of Minnesota employees, where attempts to obtain benefits were rejected.

An employee at a footwear facility in Red Wing who had problems complying with her employer’s “no-fault” attendance policy was denied benefits in Luhman v. Red Wing Shoe Co., 2015 WL 134211 (Minn. Ct. App. Jan. 12, 2015) (unpublished). She was fired for often exceeding the company’s maximum allowable 10 points for absences or tardiness during a 12-month period, culminated by three days of no call, no show-ups due to incarceration for a DWI.

The Appellate Court upheld denial of benefits, noting that Supreme Court case law that “absenteeism may qualify as disqualifying conduct.” Indeed, even “a single absence” without permission may justify disqualification for benefits.

The statutory “chemical-dependency exemption,” Minn. Stat. §268.095, subd. 6(b)(9), which excludes conduct that is “consequence” of chemical dependency from the definition of “misconduct,” does not apply. Whether incarceration due to DWI qualifies for the exclusion depends on “the particular facts of each case.” In this one, the employee’s failure to “report to work for three days” was sufficiently egregious to warrant denial of benefits.

A customer service representative for a Columbia Heights insurance agency who combined numerous absences with late arrivals to work met the same fate in Crosser v. McAlpin Agency, 2015 WL 134155 (Minn. Ct. App. Jan. 12, 2015) (unpublished). A DEED determination of disqualifying “misconduct” was affirmed because the employee’s “pattern of tardiness and absenteeism demonstrates [her] refusal to abide by the agency’s reasonable policies.” That history consisted of a long history of missing work or being late date back eight years, culminating in two late appearances by 65 minutes and 2 ½ hours and a pair of absences within a month.

The employee’s contention that the absences and late arrivals to work were not intentional was immaterial. Even if they were not willful or deliberate, they were sufficiently “excessive” to warrant denial of benefits. The agency gave her many warnings that her behavior raised “serious consequences,” and it need not show that the actions “harmed it” to uphold the denial of benefits.

Wrong Workers

A trio of other Minnesota workers not only lost their jobs, but their claims for unemployment compensation benefits earlier this year in three concurrent rulings by the Minnesota Court of Appeals for the same reason: the scofflaws were in the wrong place, at the wrong time, at their workplace facilities. 

An employee who twice created a safety hazard by walking near a crane operation was denied benefits in Gushulak v. Boise Paper Holdings, LLC, 2015 Minn. App. LEXIS 76 (Minn. Ct. App. Jan. 20, 2015) (unpublished). The claimant, who worked at a large paper making plant in International Falls, was taking a shortcut at the facility from his worksite to tool boxes through an area cordoned off by red tape, which he knew violated company policy.

The appellate court concurring with DEED, held that the employee’s action “put himself in range of a fatal accident” near the crane that was elevating a one-ton machine. The employee, who ignored warnings twice, had a poor safety record, including a prior incident of parking his vehicle improperly in a pedestrian-only area of the parking lot. This testimony in the proceeding was “inconsistent,” and he “equivocated” about one of the incidents near the crane.

The paper company’s efforts to “mention a safe workplace is clearly reasonable” and the employee’s refusal to “follow [these] reasonable employer policies” constitutes “misconduct” disqualifying him from receiving unemployment compensation. His behavior did not qualify for the “good faith” error-in-judgment exception to “misconduct because the employer’s safety policy was “unqualified” and left the “employee no direction.”

A machine operator at an automotive parts distributing plant in St. Paul lost his bid for benefits due to five failures to follow safety protocols in Fries v. Ozark Auto Distrib., 2015 Minn. App. LEXIS 66 (Minn. Ct. App. Jan. 20, 2015) (unpublished). DEED disqualified the employee after he was discharged for three near collisions while operating a vehicle on the premises and, like the International Falls paper mill worker, two individuals walking near heavy moving equipment.

His disqualification was upheld by the appellate court because he “did not demonstrate the motivation to [follow] safety regulations.” Further, his actions “caused danger to himself and others.” His “history of unsafe behavior” warranted denial of benefits because he failed to capitalize on “several opportunities to improve his performance.”

Although others were “partially responsible for the incidents,” the claimant “bore equal responsibility” in failing to “act with the caution necessary to maintain a safe workplace.” The final straw, “two safety violations on the same day,” which followed three prior incidents, constituted disqualifying “misconduct.”

A stocker and maintenance man at one of a group of supermarkets in the Red River Valley of northwestern Minnesota lost unemployment benefits because of other safety problems related in Rahier v. Valley Markets, Inc., 2015 Minn. App. LEXIS 60 (Minn. Ct. App. Jan. 20, 2015) (unpublished). He repeatedly parked in prohibited areas and used the wrong door to leave the facility during his shift to go to his vehicle. These incidents were coupled with other violations of store policies including consuming food in retail sales areas and working on unauthorized projects at home.

The employee had received three “verbal and written warnings” for his exiting transgressions.  The employee’s claim that the discharge was pretextual due to his complaints about various issues, including “safety problems,” was rejected because he failed to “present any evidence on this theory,” and there was no tolerance for “retaliation for his complaints.”

These cases reflect the difficulties that unemployment compensation applicants confront in seeking benefits. Confirming a recent trend, they prevailed in only about a third of all contested administrative proceedings in 2014, and only a minute number of the unemployment cases heard by the appellate court. They are off to a similar, somber start in 2015.