Reemployment Assistance: "Good Cause" & Failing to Participate

Minnesota Court of Appeals: Fay v. Department of Employment & Economic Development, 860 N.W.2d 385 (Minn. Ct. App. 2015)

Defining “Good Cause” for Failing to Participate in Reemployment Assistance

Minn. Stat. § 268.085, subd. 1(7), conditions eligibility for a week on participating in reemployment assistance services when the commissioner has directed you to participate, and the clause “does not apply if the applicant has good cause for failing to participate.” Missing services the commissioner directed therefore costs eligibility for that week unless good cause is shown. That same clause now defines good cause, Minn. Stat. § 268.085, subd. 1(7), and Fay v. Department of Employment & Economic Development, 860 N.W.2d 385 (Minn. Ct. App. 2015) shows what establishing it takes.

The Weekly Eligibility Condition

Participation is one of seven eligibility conditions in Minn. Stat. § 268.085, subd. 1. Each must be met for a week of benefits where it applies, and several carry their own carve-outs. Clause (7) provides that you may be eligible for a week if “the applicant has been participating in reemployment assistance services, such as development of, and adherence to, a work search plan, if the applicant has been directed to participate by the commissioner.” The clause “does not apply if the applicant has good cause for failing to participate,” and the clause supplies the standard in its own text: “‘Good cause’ is a reason that would have prevented a reasonable person acting with due diligence from participating.”

Two points matter here. The condition applies only when the commissioner has directed you to participate; it is not a universal precondition for every applicant. And the definition sits in the statute itself. The legislature added that defining sentence in Laws of Minnesota 2017, ch. 35, art. 2, § 5, signed May 11, 2017. That act specifies no effective date for the section, so it took effect August 1, 2017 under Minn. Stat. § 645.02, which provides that an act other than one making appropriations “takes effect on August 1 next following its final enactment, unless a different date is specified in the act.” Subdivision 1 has not been amended since.

Clause (5) runs alongside clause (7) as a separate weekly condition: you must be “actively seeking suitable employment as defined in subdivision 16,” though that clause “does not apply to an applicant who is in reemployment assistance training or who was on jury duty throughout the week.” Subdivision 16(a) sets that yardstick as “those reasonable, diligent efforts an individual in similar circumstances would make if genuinely interested in obtaining suitable employment under the existing conditions in the labor market area,” and adds that “[l]imiting the search to positions that are not available or are above the applicant’s training, experience, and qualifications is not ‘actively seeking suitable employment.’” You can follow the work search plan the commissioner directed and still be ineligible under clause (5), so treat the two requirements separately.

Reemployment Assistance Training Is a Different Concept

Training that protects your benefits is defined separately, as “reemployment assistance training,” in Minn. Stat. § 268.035, subd. 21c. There is no separate commissioner approval step and no “approved training” category. You either meet the definition or you do not.

For the general vocational route, the definition requires among other things that “a reasonable opportunity for suitable employment for the applicant does not exist in the labor market area and additional training will assist the applicant in obtaining suitable employment,” that the course is vocational or short-term academic training directed at an occupation or skill that will substantially enhance your employment opportunities in your labor market area, that “the training course is full time by the training provider,” and that you make satisfactory progress. Four other routes qualify on proof of enrollment alone, added by Laws of Minnesota 2021, 1st Spec. Sess., ch. 10, art. 4, § 1, effective July 3, 2022: an adult basic education consortium program under section 124D.518, an English as a second language program taught by a licensed instructor, an over-the-road truck driving program offered by a Minnesota state college or university, and a program funded under section 116L.99. Two further routes stand on their own: full-time training provided through the dislocated worker program, the Trade Act of 1974, or the North American Free Trade Agreement, “if that training course is in accordance with the requirements of that program,” and apprenticeship training “provided in order to meet the requirements of an apprenticeship program under chapter 178.” Minn. Stat. § 268.035, subd. 21c(b), (c). Under every route, the course must have actually started or be “scheduled to start within 30 calendar days.”

If you are in reemployment assistance training, three things follow. You have statutory good cause to refuse an offer of suitable employment, so the eight calendar weeks of ineligibility that otherwise follow a refusal do not apply. Minn. Stat. § 268.085, subd. 13c(a), (b)(2). The exemption is not limited to full-time offers. And clauses (4) and (5) of subdivision 1 state that they do not apply to an applicant in reemployment assistance training, so the weekly requirements to be available for suitable employment and to be actively seeking it are switched off. Clause (4) otherwise reduces your weekly benefit amount by one-fifth for each day you are unavailable.

Three limits are worth knowing before you rely on that protection. Clause (7) carries no training carve-out, so training does not excuse a missed appointment the commissioner directed; you still have to show good cause under clause (7)’s own standard. Subdivision 2(5) makes you ineligible for any week “that the applicant is performing services 32 hours or more, in employment, covered employment, noncovered employment, volunteer work, or self-employment regardless of the amount of any earnings,” and that bar reaches volunteer work and self-employment. And subdivision 15(b) provides that unless you are in reemployment assistance training, a student with regularly scheduled classes must be willing to discontinue classes to accept suitable employment when class attendance blocks the job and the class cannot be rescheduled or excused.

What Happened in Fay

Patrick Fay applied for unemployment benefits and established a benefit account. The Department of Employment and Economic Development (DEED) determined that he needed reemployment assistance services and mailed him a notice setting an appointment. The notice stated in bold and underlined type: “Failure to attend will result in a delay or denial of your unemployment benefits.” Fay missed the meeting.

DEED determined that he was ineligible for benefits for the week he missed the meeting because he failed, without good cause, to attend. He appealed, and an unemployment law judge held an evidentiary hearing. Fay testified that he missed the meeting because he forgot, and he offered no other justification even when the judge asked for further explanation. He also testified that he knew about the meeting, put it in his calendar, and lived only 500 feet from the meeting location, and that he attended a later meeting without issue. The judge found that he did not have good cause and was ineligible for that week.

Fay requested a rehearing, the judge affirmed, and Fay then sought review in the Minnesota Court of Appeals by writ of certiorari under Minn. Stat. § 268.105, subd. 7(a). That provision then gave a party 30 calendar days from the sending of the decision on reconsideration to file and serve the petition. The window is now 45 calendar days, plus three days if the decision on reconsideration was mailed, for determinations issued on or after May 5, 2024.

The Statute the Court Was Reading

At the time of Fay’s appeal, Minn. Stat. § 268.085, subd. 1(7) (2014), stated,

An applicant may be eligible to receive unemployment benefits for any week if . . . the applicant has been participating in reemployment assistance services, such as job search and resume writing classes, if the applicant has been determined in need of reemployment assistance services by the commissioner, unless the applicant has good cause for failing to participate.

(Emphasis added.) That version left “good cause” undefined, which is why the court called the question “an issue of first impression.” The opinion is published, with a syllabus. Two later acts changed the clause. Laws of Minnesota 2015, 1st Spec. Sess., ch. 1, art. 6, § 8, effective August 2, 2015, replaced “job search and resume writing classes” with “development of, and adherence to, a work search plan,” replaced the “determined in need of reemployment assistance services” trigger with “directed to participate,” and moved the good cause proviso into its own sentence. The 2017 act then added the definition. If you find the older wording quoted somewhere, you are reading the version the court applied, not current law.

How the Court Reached the Definition

The court first held the phrase ambiguous. A statute is ambiguous when its language is subject to more than one reasonable interpretation, and good cause for failing to participate “is susceptible to a spectrum of reasonable interpretations.” As illustrations, the court offered a medical emergency, a family emergency, or a vehicle malfunction. Do not read those as a safe harbor. The very next sentence says: “Each of these scenarios could involve facts that make an applicant more or less responsible for missing the meeting, depending on the efforts that the applicant makes to attend or reschedule.”

Because the phrase was ambiguous, the court turned to the doctrine of in pari materia, “a tool of statutory interpretation that allows two statutes with common purposes and subject matter to be construed together to determine the meaning of ambiguous statutory language.” Fay v. Department of Employment & Economic Development, 860 N.W.2d 385, 387 (Minn. Ct. App. 2015) (quoting State v. Leathers, 799 N.W.2d 606, 611 (Minn. 2011)).

The candidate it used was Minn. Stat. § 268.105, subd. 2(d) (2014), which defines good cause for a party who failed to participate in a hearing as “a reason that would have prevented a reasonable person acting with due diligence from participating in the hearing.” The court found the shared ground in one sentence: “The common purpose of these sections is requiring an applicant to show good cause for missing a hearing or meeting.” Under section 268.085 the applicant shows good cause to stay eligible for benefits; under section 268.105 the applicant shows good cause to obtain an additional hearing.

The court then looked at the three other places chapter 268 defined good cause and concluded that “these definitions of good cause do not share a common purpose with Minn. Stat. § 268.085, subd. 1(7).” Those were section 268.085, subd. 13c (refusing suitable employment), Minn. Stat. § 268.0865, subd. 5(a) (2014) (filing continued requests), and Minn. Stat. § 268.095, subd. 2(d) (2014) (staffing assignments). In a footnote the court completed the survey: “Good cause is undefined in two other sections of chapter 268. See Minn. Stat. §§ 268.044, subd. 2(c) (requiring employers who fail to submit reports on time to show good cause to avoid late fees), .053, subd. 1(d) (2014) (dealing with employers requesting more time to file a notice of election if the commissioner finds good cause for an extension).” Both of those are aimed at employers rather than benefit applicants.

The reason the burden landed where it did is worth carrying. As the 2014 statutes then read, section 268.0865 required “a compelling substantial reason,” while section 268.105 required only “a reason.” The court wrote: “Given a choice between the two, we select the lesser burden because it would give an applicant a better chance at receiving unemployment benefits in accordance with the purpose of chapter 268,” citing Minn. Stat. § 268.031, subd. 2 (2014) (“This chapter is remedial in nature and must be applied in favor of awarding unemployment benefits.”). Your burden is the lower of the two the court considered, and it was set there on purpose. Note that Laws of Minnesota 2017, ch. 35, art. 3, § 12, struck “compelling substantial” from section 268.0865, subd. 5(a), so that contrast describes the statutes as they read in 2014.

The holding appears in the opinion’s own syllabus: “‘Good cause’ for failing to participate in reemployment assistance services under Minn. Stat. § 268.085, subd. 1(7) (2014), is defined as a reason that would have prevented a reasonable person acting with due diligence from participating in those services.”

What You Have to Show

Applying that standard, the court affirmed. Fay knew about the meeting, had calendared it, lived 500 feet away, and gave no reason beyond forgetting. “A reasonable person acting with due diligence would not have forgotten about the meeting.”

The court also explained what a successful showing looks like. Drawing on two earlier decisions, Petracek v. University of Minnesota, 780 N.W.2d 927, 930 (Minn. Ct. App. 2010) and Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 345 (Minn. Ct. App. 2006), it stated that an applicant must make some showing, such as an explanation of the circumstances of the incarceration in Petracek, or DEED refusing to reschedule a hearing in Skarhus, in order to establish good cause for missing a hearing. Naming an obstacle is not enough. Explain the circumstances, and show what you did about attending or rescheduling.

Where you make that showing decides the case. Fay raised insurance paperwork, bankruptcy, a job search, and caring for an ill family member for the first time in his appellate brief. The court could not consider any of it: “However, relator did not present this information to the ULJ and we therefore may not consider it.” It added that “there is no equitable denial or allowance of benefits. Minn. Stat. § 268.069, subd. 3.” Hardship on its own does not substitute for a showing that fits the statutory standard. The hearing record is where the reason has to land. If it was not presented there, the remaining route is a request for reconsideration showing that the evidence would likely change the outcome and that you had good cause for not submitting it earlier, which under Minn. Stat. § 268.105, subd. 2(c), requires the judge to order an additional hearing.

The Procedure Around the Showing

The first step after a determination of ineligibility is an appeal of that determination, not a request for reconsideration. Under Minn. Stat. § 268.101, subd. 2(f), “[a] determination of eligibility or determination of ineligibility is final unless an appeal is filed by the applicant or employer within 45 calendar days after sending.” On a timely appeal, Minn. Stat. § 268.105, subd. 1(a), directs the chief unemployment law judge to set a time and date for a de novo due process hearing. Under subd. 2(c), a judge deciding a request for reconsideration “must not consider any evidence that was not submitted at the hearing, except for purposes of determining whether to order an additional hearing.”

Reconsideration comes after the judge’s decision, and the good cause standards it carries are different ones: good cause for not submitting evidence earlier under subd. 2(c), and good cause for failing to participate in the hearing itself under subd. 2(d), which is the section 268.105 standard Fay borrowed from. Neither is the clause 1(7) standard for failing to participate in reemployment assistance services. Under Minn. Stat. § 268.105, subd. 2(a), you file a request for reconsideration within 45 calendar days of the sending of the judge’s decision, and subd. 2(d) requires the judge to set the decision aside and order an additional hearing if you had good cause for failing to participate. If the judge decides good cause was not shown, the judge must say so in the decision.

Know what does not count as participating in the hearing. Under subd. 1a(b), an appealing party who fails to participate may have the appeal dismissed by summary decision and is treated as having failed to exhaust administrative remedies unless a request for reconsideration is filed and good cause established. The same paragraph states: “Submission of a written statement does not constitute participation. The applicant must participate personally and appearance solely by a representative does not constitute participation.”

If reconsideration goes against you, subd. 7(a) gives you 45 calendar days from the sending of the decision on reconsideration to file a certiorari petition with the Minnesota Court of Appeals and serve a copy on the unemployment law judge or the commissioner and any other party, with three days added if that decision was mailed. Cost is rarely the obstacle it looks like: under subd. 7(c), once the writ issues on an applicant’s petition, the department must furnish a written transcript at no cost and, on request, copies of all exhibits, and “[n]o filing fee or cost bond is required of an applicant petitioning the Minnesota Court of Appeals for a writ of certiorari.” Subd. 7(d) sets what the court can do. It may affirm or remand, and it may reverse or modify only if your substantial rights may have been prejudiced because the decision is unconstitutional, in excess of the department’s statutory authority or jurisdiction, made upon unlawful procedure, affected by other error of law, unsupported by substantial evidence in view of the hearing record as submitted, or arbitrary or capricious.

Two Good Cause Standards in One Section

Minn. Stat. § 268.085 uses the phrase twice, with different tests and very different consequences, and blending them is a costly mistake. Subdivision 1(7) asks whether a reason “would have prevented a reasonable person acting with due diligence from participating,” and failing it costs your eligibility for that week. Subdivision 13c(b) asks whether a reason “would cause a reasonable individual who wants suitable employment to fail to apply for, accept, or avoid suitable employment,” and lists four qualifying situations, including that you are in reemployment assistance training. Failing that test under subd. 13c(a) costs eight calendar weeks of ineligibility for all unemployment benefits. The court in Fay concluded that subdivision 13c does not share a common purpose with subdivision 1, so its standard does not carry over to a missed appointment.

Where the Law Stands Now

The court’s definition is now the statute’s. Since August 1, 2017, Minn. Stat. § 268.085, subd. 1(7), provides that “‘Good cause’ is a reason that would have prevented a reasonable person acting with due diligence from participating.” The in pari materia analysis is no longer the route to the definition, because Laws of Minnesota 2017, ch. 35, art. 2, § 5, enacted into clause (7) the same definition Fay had adopted.

Fay remains good law on how that standard applies. The Minnesota Supreme Court has never reviewed it. The Minnesota Court of Appeals has continued to cite it, most recently in Coyne v. Dollar General, No. A25-1470 (Minn. Ct. App. June 15, 2026) (nonprecedential), citing Fay at 387 for the rule that the court relies on a judge’s factual findings that are substantially supported by the record. Earlier, Ogunkola v. Cirrus Design Corp., No. A16-0442 (Minn. Ct. App. Oct. 24, 2016) (nonprecedential) extended Fay’s reasoning to a missed hearing, holding that forgetting the hearing date is not good cause.

The practical takeaway has not changed since 2015. If you cannot attend an appointment the commissioner directed, try to reschedule and document that you tried. If you missed it, the determination of ineligibility is appealed within 45 calendar days after sending under Minn. Stat. § 268.101, subd. 2(f), and the de novo hearing that appeal produces under Minn. Stat. § 268.105, subd. 1(a), is where the full explanation, with the circumstances, belongs. New facts offered for the first time in the appellate brief cannot be considered.