Fired for Tardiness: Can the Employee Get Unemployment?

How Does Minnesota Decide Whether Tardiness Is Employment Misconduct?

Minnesota asks one question: was the attendance problem “a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee”? Under Minn. Stat. § 268.095, subd. 4, a discharged employee is ineligible “only if” the discharge was for employment misconduct (or for aggravated employment misconduct; under subdivision 6a, “The commission of any act, on the job or off the job, that would amount to a gross misdemeanor or felony is aggravated employment misconduct if the act had a significant adverse effect on the employment”).

The full definition in subdivision 6, paragraph (a), reads: “Employment misconduct means any intentional, negligent, or indifferent conduct, on the job or off the job, that is a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee.” Paragraph (e) adds: “The definition of employment misconduct provided by this subdivision is exclusive and no other definition applies.”

That exclusivity matters when you read older cases. Minn. Stat. § 268.069, subd. 3, provides that there is no “equitable or common law denial or allowance of unemployment benefits” in Minnesota. In Wilson v. Mortgage Resource Center, Inc., 888 N.W.2d 452 (Minn. 2016), a case about a false job application rather than attendance, the Minnesota Supreme Court held that “a prior common law standard that is incompatible with the statutory language is inapplicable” because the statutory definition is exclusive. The legislature adopted the statutory definition in 1997, Wilson notes, and many attendance decisions are older. I suggest testing any rule quoted from an older case against the current text before relying on it. Other conduct that can qualify is covered in my page on other kinds of employment misconduct.

Which Attendance Problems Are Not Misconduct Under the Statute?

Absence for the employee’s own illness or injury, “with proper notice to the employer,” is not employment misconduct, and neither is absence with proper notice to care for an ill, injured, or disabled immediate family member. Under Minn. Stat. § 268.095, subd. 6, paragraph (b), “Regardless of paragraph (a), the following is not employment misconduct,” and the list includes both of these.

The other exclusions that can reach an attendance discharge are:

• “conduct that was a consequence of the applicant’s mental illness or impairment”
• “conduct that was a consequence of the applicant’s inefficiency or inadvertence”
• “simple unsatisfactory conduct”
• “conduct an average reasonable employee would have engaged in under the circumstances”
• “conduct that was a consequence of the applicant’s inability or incapacity”
• “conduct that was a consequence of the applicant’s substance use disorder, unless the applicant was previously diagnosed with substance use disorder or had treatment for substance use disorder, and since that diagnosis or treatment has failed to make consistent efforts to control the substance use disorder”
• “conduct that was a consequence of the applicant, or an immediate family member of the applicant, being a victim of domestic abuse, sexual assault, or harassment or stalking”

The mental-impairment exclusion decided Cunningham v. Wal-Mart Associates, Inc., 809 N.W.2d 231 (Minn. App. 2011). “Cunningham missed five consecutive shifts without calling in.” The Court of Appeals agreed that “His failure to call regarding his absences was a serious violation of the standard that Wal-Mart had a right to reasonably expect of its employees.” It still reversed the misconduct finding, because the absences were a consequence of stroke-related memory and concentration problems that the employee had described to the employer in a letter and a meeting.

A one-time absence gets its own rule. Under paragraph (d), “If the conduct for which the applicant was discharged involved only a single incident, that is an important fact that must be considered in deciding whether the conduct rises to the level of employment misconduct under paragraph (a).”

Why Does a Known Attendance Policy Matter More Than Progressive Discipline?

The misconduct test looks at what the employee did, so skipping a step in your discipline policy does not by itself defeat a misconduct finding. Whether repeated violations of a known attendance policy amount to misconduct still depends on the circumstances. In Stagg v. Vintage Place Inc., 796 N.W.2d 312 (Minn. 2011), the Minnesota Supreme Court held: “Thus, the focus of the inquiry is the employee’s conduct, not that of the employer.”

The employer, a group home, had a five-step policy for unexcused absences that ended in discharge, and it fired the employee without imposing the fourth step, a ten-day suspension. The court held that “whether an employer follows the procedures in its employee manual says nothing about whether the employee has violated the employer’s standards of behavior.” The record showed that “Stagg was aware of the attendance policy, as well as the reasons for it, and knew that he was expected to comply.” It added: “Finally, the record establishes that Stagg failed to comply with the employer’s attendance policy on at least five occasions.” He had received an oral warning, probation, and a two-day suspension. The court reinstated the denial of benefits.

Two limits apply. Stagg applied an earlier version of the definition, which covered conduct “on the job or off the job that displays clearly” a serious violation, so read its reasoning against the current text quoted above. And the court said the answer “depends on the circumstances of each case.” The Court of Appeals has also said, in Wichmann v. Travalia & U.S. Directives, Inc., 729 N.W.2d 23 (Minn. App. 2007): “An employer has the right to establish and enforce reasonable rules governing absences from work.”

Stagg also noted that a claim that the employer breached its handbook belongs in “a different forum,” so a skipped step can still matter there. Stagg named the facts such a claim turns on: “Whether an employee handbook constitutes a contract between employer and employee, and whether the employer breached that contract by failing to act in accordance with the terms of the employee handbook, are relevant facts to claims for breach of contract made directly between employer and employee.” I suggest applying your attendance policy the same way to every employee, because uneven enforcement creates its own legal risk, covered in my page on inconsistent enforcement of discipline. Day-to-day handling of lateness is in my page on managing a chronically late employee.

Which Absences Can a Minnesota Employer Not Count Against an Employee?

Earned sick and safe time (ESST) cannot be counted under an attendance or point system, Minnesota paid leave cannot be the reason for discipline or discharge, and a covered employer cannot count federal Family and Medical Leave Act (FMLA) leave under a no-fault attendance policy.

• Earned sick and safe time. Under Minn. Stat. § 181.9447, subd. 6, “It shall be unlawful for an employer’s absence control policy or attendance point system to count earned sick and safe time taken under sections 181.9445 to 181.9448 as an absence that may lead to or result in retaliation or any other adverse action.” Subdivision 2 lets you require notice of unforeseeable use “as reasonably required by the employer,” but “If a copy of the written policy has not been provided to an employee, an employer shall not deny the use of earned sick and safe time to the employee on that basis.” Enforcement and remedies are in Minn. Stat. § 177.50.
• Minnesota paid leave. Under Minn. Stat. § 268B.09, subd. 1, “An employer must not discharge, discipline, penalize, interfere with, threaten, restrain, coerce, or otherwise retaliate or discriminate against an employee for requesting or obtaining benefits or leave, or for exercising any other right under this chapter.”
• FMLA leave. For an employer covered by the FMLA, the federal regulation at 29 C.F.R. § 825.220(c) states that “employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under no fault attendance policies.”

Other Minnesota statutes protect other absences, including pregnancy and parenting leave under Minn. Stat. § 181.941, subd. 3 and jury service under Minn. Stat. § 593.50, subd. 1.

Before contesting, I suggest removing every protected absence from the count and checking whether the remaining record still shows a serious violation, because an attendance case built on protected leave invites a retaliation claim. The ESST rules are in my page on earned sick and safe time compliance.

How Does an Employer Contest an Unemployment Claim for Attendance?

You contest by answering the Minnesota Department of Employment and Economic Development (DEED) with the specific facts of the discharge, and then by appealing within the statutory period any determination you disagree with. Under Minn. Stat. § 268.101, subd. 1, DEED notifies employers “in order to provide the employer an opportunity to raise, in a manner and format prescribed by the commissioner, any issue of ineligibility.”

The response has to say why. Subdivision 2 provides: “A communication from an employer must specifically set out why the applicant should be determined ineligible for unemployment benefits for that communication to be considered to have raised an issue of ineligibility for purposes of this section.” A bare “protest” does not count. For an attendance discharge, that means the policy, the dates, the notice given or not given, the warnings, and the final incident.

DEED decides even without you. “A determination must be made in accordance with this paragraph even if a notified employer has not raised the issue of ineligibility.” Payment does not wait for an appeal: “If a determination or amended determination allows unemployment benefits to an applicant, the unemployment benefits must be paid regardless of any appeal period or any appeal having been filed” (subd. 5). The appeal period is set in § 268.101, subd. 2(f); I suggest reading the current text and calendaring the deadline the day the determination arrives, because a determination not appealed in time becomes final.

The response must be accurate. Under Minn. Stat. § 268.184, subd. 1, the commissioner must penalize an employer if the employer or its agent “made a false statement or representation without a good faith belief as to correctness of the statement or representation or knowingly failed to disclose a material fact” in order to, among other purposes, “assist an applicant to receive unemployment benefits to which the applicant is not entitled” or “prevent or reduce the payment of unemployment benefits to an applicant.” “The penalty is the greater of $500 or 100 percent of the following resulting from the employer’s action,” which includes “the amount of any overpaid unemployment benefits to an applicant” and benefits not paid that otherwise would have been. My page on other unemployment defenses covers quits and non-charge requests.

What Happens at a Minnesota Unemployment Law Judge Hearing?

An appeal leads to a fresh hearing before an unemployment law judge, who gathers the evidence from both sides and decides by a preponderance of the evidence. Under Minn. Stat. § 268.105, subd. 1, “the chief unemployment law judge must set a time and date for a de novo due process hearing and send notice to any applicant and any employer, by mail or electronic transmission, not less than ten calendar days before the date of the hearing.” Under Minn. Stat. § 268.031, subd. 1, “All issues under the Minnesota Unemployment Insurance Law are determined by a preponderance of the evidence.”

Nobody carries a burden of proof. Minn. R. 3310.2921 provides: “The hearing must be conducted by an unemployment law judge as an evidence-gathering inquiry, without regard to a burden of proof.” In Wilson, the Minnesota Supreme Court said: “The statute imposes no burden on an employer to submit evidence to show that it terminated an employee for misconduct.” The facts still decide the case, and § 268.031, subd. 2, provides that “Any legal conclusion that results in an applicant being ineligible for unemployment benefits must be fully supported by the facts.”

These procedural details shape how you prepare:

• One chance. The judge must tell the parties “that the hearing is the only opportunity available to the parties to present testimony and other evidence on the issues involved” (Minn. R. 3310.2921).
• Evidence. Under Minn. R. 3310.2922, “An unemployment law judge may receive any evidence that possesses probative value, including hearsay, if it is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs.” The same rule adds: “An unemployment law judge may only use reliable, probative, and substantial evidence as a basis for decision.” I suggest offering the time records and dated warnings themselves, because the decision can rest only on evidence that meets that standard.
• Credibility. Under § 268.105, subd. 1a, “When the credibility of a witness testifying in a hearing has a significant effect on the outcome of a decision, the unemployment law judge must set out the reason for crediting or discrediting that testimony.” In Wichmann, the Court of Appeals remanded under an earlier version of this requirement because the judge had made no credibility findings on disputed absences.
• Participation. “If the appealing party fails to participate in the hearing, the unemployment law judge has the discretion to dismiss the appeal by summary decision,” and “Submission of a written statement does not constitute participation” (subd. 1a).
• Representation. “In any proceeding under subdivision 1 or 2, an applicant or employer may be represented by any authorized representative” (subd. 6).

I suggest bringing the supervisor who tracked the absences as a witness, because a disputed call-in turns on whose account the judge credits. More on getting ready is in my page on preparing for the hearing.

How Does the Decision Affect the Employer’s Unemployment Tax?

For a taxpaying employer, benefits paid after an attendance discharge count in computing its future tax rate unless the discharge is found to be for misconduct, and for some base period employers that exception begins only after the employer raises the issue. Under Minn. Stat. § 268.047, subd. 1, “Unemployment benefits paid to an applicant, including extended and shared work benefits, will be used in computing the future tax rate of a taxpaying base period employer or charged to the reimbursable account of a base period nonprofit or government employer that has elected to be liable for reimbursements except as provided in subdivisions 2 and 3.”

Subdivision 3 supplies the exception: benefits “will not be used in computing the future tax rate of a taxpaying base period employer” when “the employer discharged the applicant from employment because of employment misconduct as determined under section 268.095.” That exception covers benefits paid for periods after the discharge. Subdivision 4 provides that it “will be limited according to section 268.101, subdivision 2, paragraph (b)”: for a base period employer that was not the applicant’s most recent employer, did not employ the applicant “during the six calendar months before the application for unemployment benefits,” and did not raise the discharge issue in the time Minn. Stat. § 268.101, subd. 2(b) allows, the exception “begins the Sunday two weeks following the week that the issue of ineligibility as a result of a quit or discharge of the applicant was raised by the employer.”

An unemployment law judge’s decision against benefits also changes the status of benefits already paid. Under Minn. Stat. § 268.105, subd. 3a, “If an unemployment law judge’s decision modifies or reverses a determination that allowed unemployment benefits, or on reconsideration the decision modifies or reverses a prior decision that allowed benefits, any benefits paid are an overpayment of those benefits.”

What Attendance Records Help an Employer Win?

The records that decide these cases are the ones the statute and Stagg point to. I suggest keeping these, because each answers a question the judge must ask:

1. A written attendance policy the employee received. Stagg turned on a policy the employee knew, with reasons he knew. Include a call-in procedure; § 181.9447, subd. 2, conditions denial of ESST for lack of notice on a written notice policy the employee received. My attendance policy template is a starting point.
2. Each incident, dated, with the notice given. Whether the employee called in, and when, shows whether an absence came “with proper notice to the employer,” which the illness and family-care exclusions require.
3. Warnings in writing. Stagg’s record included an oral warning, probation, and a suspension.
4. Protected leave kept separate. Mark ESST, paid leave, FMLA, and other protected absences, such as pregnancy and parenting leave and jury service, so none is counted toward the discharge.
5. A first-hand witness. The supervisor who received or missed the calls can answer the judge’s questions about them.

A broader guide for employers is in my page on unemployment claims for employers. If you would like me to analyze an attendance discharge and tell you whether the record supports contesting the claim, email [email protected] with a brief description. I suggest waiting to send confidential documents, such as personnel or medical records, until I complete an intake and conflict check. More on my Minnesota employment law practice is on the practice page.