Employee Refuses to Do Assigned Work in Minnesota

When can a Minnesota employer fire an employee for refusing work?

You can fire an at-will employee for refusing assigned work. An employee hired for no fixed term can be dismissed for any reason or no reason, so a refused instruction is enough, unless the refusal fits a protected category or a handbook or contract promises steps first.

In Dukowitz v. Hannon Security Services, 841 N.W.2d 147 (Minn. 2014), the Minnesota Supreme Court restated the rule: “In Minnesota, the employer-employee relationship is generally at-will, which means that an employer may discharge an employee for ‘any reason or no reason’”. The quoted words come from Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn. 1983), which applied the rule to a hiring “for an indefinite term.”

The exceptions a Minnesota employer most often meets in a refusal include these:

• An order the employee has an objective basis in fact to believe is illegal, refused after the employee tells you that reason, under Minn. Stat. § 181.932, subd. 1.
• A task the employee, acting in good faith, reasonably believes presents an imminent danger of death or serious physical harm, after asking you to correct the conditions and the conditions remain uncorrected, under Minn. Stat. § 182.654, subd. 11.
• Refusing to take part in discrimination, under Minn. Stat. § 363A.15.
• Disability, pregnancy, or religion, where a reasonable accommodation is owed unless it is an undue hardship, under Minn. Stat. § 363A.08, subd. 6 (15 or more employees), Minn. Stat. § 181.939, subd. 2 (one or more), and federal law. For pregnancy, an employer may not claim undue hardship for more frequent or longer restroom, food, and water breaks, seating, or “limits on lifting over 20 pounds.”
• A work injury, under Minn. Stat. § 176.82, which makes liable “Any person discharging or threatening to discharge an employee for seeking workers’ compensation benefits” (subd. 1) and an employer that, “without reasonable cause, refuses to offer continued employment to its employee when employment is available within the employee’s physical limitations” (subd. 2), a subdivision that “shall not apply to employers who employ 15 or fewer full-time equivalent employees.”
• A request for paid leave, under Minn. Stat. § 268B.09, subd. 1, or for earned sick and safe time, under Minn. Stat. § 181.9447, subd. 6.
• Declining an employer meeting about religious or political matters, under Minn. Stat. § 181.531, subd. 1, which bars discipline because the employee “declines to attend or participate in an employer-sponsored meeting” held “to communicate the opinion of the employer about religious or political matters.” The statute does not limit “requiring employee attendance at meetings and other events, that is necessary for the employees to perform their lawfully required job duties” (subd. 4). “Political matters” include “the decision to join or support any political party or political, civic, community, fraternal, or labor organization” (subd. 5).
• A joint refusal with coworkers over working conditions, under the National Labor Relations Act (see the FAQ below).
• A handbook, contract, or union agreement that promises a discipline procedure (see the handbook section).

For the at-will rule in other firing decisions, see firing an at-will employee in Minnesota and Minnesota’s exceptions to at-will employment.

What counts as insubordination under Minnesota law?

In practice, insubordination is a refusal to do work the employee is able to do. The line that matters is between “will not” and “cannot,” because Minnesota’s unemployment statute treats conduct caused by inability, inefficiency, or simple unsatisfactory performance differently from a deliberate refusal.

Minn. Stat. § 268.095, subd. 6 lists conduct that is not employment misconduct, including “conduct that was a consequence of the applicant’s inability or incapacity,” “conduct that was a consequence of the applicant’s inefficiency or inadvertence,” and “simple unsatisfactory conduct.” An employee who tries and fails, misunderstands, or cannot finish in the time given is a performance problem. An employee who flatly says no after a clear instruction has refused.

Before calling a missed task insubordination, I suggest checking three facts, because each one moves the problem from “will not” to “cannot”:

1. The instruction was clear. The employee knew the task, the standard, and the deadline, preferably in writing.
2. The task was possible. The deadline and workload left room to do it, and the employee had the training and tools.
3. The employee said no or simply did not do it after being reminded. Silence after one vague request is weaker evidence than a stated refusal after a written one.

An employee who objects but does the work has not refused. Treating a complaint as insubordination invites the retaliation questions covered below. For a related pattern, see an employee who refuses overtime.

Which refusals do Minnesota safety and whistleblower laws protect?

Minnesota protects two refusals outright. One is refusing an order the employee has an objective basis to believe is illegal, after telling you so. The other is refusing in good faith to work in conditions the employee reasonably believes present an imminent danger of death or serious physical harm, after asking you to fix them and the conditions remain uncorrected. It also bars reprisal against an employee who opposes discrimination.

An illegal order. Under Minn. Stat. § 181.932, subd. 1, an employer may not discharge, discipline, or otherwise retaliate because “the employee refuses an employer’s order to perform an action that the employee has an objective basis in fact to believe violates any state or federal law or rule or regulation adopted pursuant to law, and the employee informs the employer that the order is being refused for that reason.” Both conditions matter: a real factual basis, and telling you the reason. The statute reaches any employer “having one or more employees in Minnesota” (Minn. Stat. § 181.931, subd. 3). An employee injured by a violation may sue for damages and “reasonable attorney’s fees,” and the court may order “reinstatement, back pay, restoration of lost service credit, if appropriate, compensatory damages” (Minn. Stat. § 181.935). See firing an employee who reported a violation.

An imminent danger. Under Minn. Stat. § 182.654, subd. 11, “An employee acting in good faith has the right to refuse to work under conditions which the employee reasonably believes present an imminent danger of death or serious physical harm to the employee.” You “may not discriminate against an employee for a good faith refusal to perform assigned tasks if the employee has requested that the employer correct the hazardous conditions but the conditions remain uncorrected.” The statute also provides pay for the refused tasks to an employee “who has not been reassigned to other tasks by the employer,” if the employee asks the commissioner to inspect and the commissioner finds the danger was real. An administrative law judge may also order “compensatory damages payable to the aggrieved worker equal to the greater of $5,000 or twice the actual damages.” I suggest moving the employee to other work while you check the hazard, because reassignment keeps the work moving and the statute ties the pay right to an employee who was not reassigned.

Federal safety law states its own conditions. Its regulation says “as a general matter, there is no right afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace,” but “If the employee, with no reasonable alternative, refuses in good faith to expose himself to the dangerous condition, he would be protected against subsequent discrimination” (29 C.F.R. § 1977.12). The condition “must be of such a nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a real danger of death or serious injury and that there is insufficient time, due to the urgency of the situation, to eliminate the danger through resort to regular statutory enforcement channels.” The employee also “where possible, must also have sought from his employer, and been unable to obtain, a correction of the dangerous condition.” See terminating an employee for safety violations.

Refusing to take part in discrimination. The Minnesota Human Rights Act bars reprisal. Under Minn. Stat. § 363A.15, an employer may not “intentionally engage in any reprisal against any person because that person” “opposed a practice forbidden under this chapter.” An employee who will not carry out an instruction to treat an applicant, customer, or coworker differently because of race, sex, disability, or another protected trait can be opposing such a practice. The statute defines reprisal to include “any form of intimidation, retaliation, or harassment.”

How do accommodation and leave laws change a refusal?

When a refusal traces to a disability, pregnancy, or religious practice, or arrives with a leave request, each of these laws can require you to work through the request before treating the refusal as insubordination. The Minnesota pregnancy duty and the Minnesota bar on discharge because of disability start at one employee; the Minnesota and federal disability accommodation duties and the federal religion duty start at 15.

Disability. A Minnesota employer with 15 or more employees must reasonably accommodate a qualified employee with a disability “unless the employer, agency, or organization can demonstrate that the accommodation would impose an undue hardship on the business, agency, or organization” (Minn. Stat. § 363A.08, subd. 6). The statute requires the employer to “initiate an informal, interactive process with the individual with a disability in need of the accommodation.” Accommodation can include “job restructuring, modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, and the provision of aides on a temporary or periodic basis.” The federal Americans with Disabilities Act, for employers with 15 or more employees, treats as discrimination “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability,” unless the employer can show undue hardship (42 U.S.C. § 12112). The Minnesota Human Rights Act’s bar on discharging an employee because of disability (Minn. Stat. § 363A.08, subd. 2) applies to an employer that “has one or more employees” (Minn. Stat. § 363A.03, subd. 16).

Pregnancy. Minn. Stat. § 181.939, subd. 2 applies to an employer with “one or more employees.” It requires reasonable accommodations for health conditions related to pregnancy or childbirth on request, unless the employer shows undue hardship. For three accommodations, the employee needs no provider’s advice. For those three, the statute bars any claim of undue hardship. They are seating, more frequent or longer restroom, food, and water breaks, and “limits on lifting over 20 pounds” for a pregnant employee. The employer and employee “shall engage in an interactive process” about the request. The statute also provides that “An employer shall not require an employee to take a leave or accept an accommodation” (subd. 2(c)). A pregnant employee who asks not to lift over 20 pounds is requesting an accommodation under subd. 2(a), and subd. 2(d) bars discipline “for asserting rights or remedies under this subdivision.” The federal Pregnant Workers Fairness Act, for employers with 15 or more employees, requires reasonable accommodation of known pregnancy-related limitations unless the employer shows undue hardship. It also bars requiring an employee “to accept an accommodation other than any reasonable accommodation arrived at through the interactive process” (42 U.S.C. § 2000gg-1).

Religion. For employers with 15 or more employees, Title VII of the Civil Rights Act defines religion to include practice and observance “unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business” (42 U.S.C. § 2000e). The Minnesota Human Rights Act separately makes it unlawful to discharge an employee because of creed or religion (Minn. Stat. § 363A.08, subd. 2).

Leave. Under Minnesota’s paid leave law, 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” (Minn. Stat. § 268B.09, subd. 1), and protected leave includes a day for which “the employee has applied for benefits in good faith.” The same section gives the employee “no greater right to reinstatement” than continuous employment would have, but “An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment” (subd. 7). Records made before the leave request are the evidence an employer would use to make that showing. Earned sick and safe time has its own bar on retaliation “because the person requested earned sick and safe time, used earned sick and safe time,” and an attendance point system may not count it “as an absence that may lead to or result in retaliation or any other adverse action” (Minn. Stat. § 181.9447, subd. 6). A separate statute requires unpaid leave for “a female employee for prenatal care, or incapacity due to pregnancy, childbirth, or related health conditions” and bars retaliation “for requesting or obtaining a leave of absence as provided by this section” (Minn. Stat. § 181.941, subd. 1 and subd. 3). See Minnesota’s retaliation statutes.

How should an employer respond when an employee refuses a task?

I suggest asking for the reason first, then deciding, because the reason tells you whether a protection applies. If none applies, restate the instruction in writing with its consequence, and base any discipline on the refusal you documented before any protected request arrived.

1. Ask why, privately, and write the answer down. Listen for illegality, danger, a health condition, a work injury, pregnancy, a religious practice, a leave request, or coworkers acting together.
2. If the reason is protected or might be, pause the discipline. Reassign the work while you check a hazard, start the interactive process on a limitation, or route a leave request through your normal process.
3. If no protected reason appears, restate the instruction in writing. Name the task, the deadline, and that a further refusal will lead to discipline up to termination.
4. Decide on the record you already have. If an employee on paid leave requests reinstatement, the paid leave law requires you to show that the employee “would not otherwise have been employed” in order to deny restoration (Minn. Stat. § 268B.09, subd. 7), and a record made before the request is the evidence for that showing.

When an owner asked me about ending the employment of an employee who had not completed assigned tasks, the employee emailed a medical leave request before anyone had told the employee of the decision. I suggested holding off on the termination and on any change to pay, because the leave request changed both questions. How the timing of the decision lined up with the owner’s records was likely to be the central question if the employee challenged a termination. I also suggested keeping messages to the employee short and limited to logistics, and saving the records.

How should a written warning for refusing work be documented?

A written warning for refusing work becomes part of the employee’s personnel record under Minnesota law, and the employee can see it and dispute it. I suggest writing each warning in neutral, factual terms, because the statute lets the employee attach a written response that stays with it.

Minn. Stat. § 181.960, subd. 4 defines the personnel record to include “notices of commendation, warning, discipline, or termination.” The definitions cover an employer that “has one or more employees” and employees whose services “have been performed predominately within this state.” A supervisor’s own notes are excluded while “kept in the sole possession of the author of the record,” so the exclusion lasts only while the notes stay with their author.

If the employee disputes the warning and you do not agree to change it, “the employee may submit a written statement specifically identifying the disputed information and explaining the employee’s position,” and “The position statement must be included along with the disputed information for as long as that information is maintained in the employee’s personnel record” (Minn. Stat. § 181.962, subd. 1). An employer “shall not discharge, discipline, penalize, interfere with, threaten, restrain, coerce, or otherwise retaliate or discriminate against an employee for asserting rights or remedies provided in sections 181.960 to 181.965” (Minn. Stat. § 181.964).

A warning for a refusal should state:

• the date and the instruction as given, with any deadline;
• what the employee said or did, in the employee’s words where possible;
• the reason the employee gave, and what you did about it;
• the consequence of a further refusal.

Leave out characterizations such as “bad attitude,” because they describe you rather than the conduct. See warnings that do not hold up in court.

How does a handbook discipline policy affect a refusal firing?

A handbook that promises specific discipline steps can bind you to follow them before firing for a refusal. The Minnesota Supreme Court held that handbook terms meeting the requirements of a contract offer can become part of the employment contract, and it noted that handbook language can reserve your discretion instead.

In Pine River, the bank’s handbook set out a disciplinary procedure, the bank fired a loan officer without following it, and the court affirmed a jury award of damages to the employee. The court wrote: “Language in the handbook itself may reserve discretion to the employer in certain matters or reserve the right to amend or modify the handbook provisions. We conclude, therefore, that personnel handbook provisions, if they meet the requirements for formation of a unilateral contract, may become enforceable as part of the original employment contract.” The offer “must be definite in form and must be communicated to the offeree.” The court also noted that the case was a breach-of-contract case and did not involve a retaliatory discharge.

Two practical consequences follow. If your handbook says a verbal warning, a written warning, and a final warning come before termination, I suggest following those steps for a refusal, because skipping them is the contract claim Pine River allowed. If you want room to fire after a single serious refusal, the handbook should say that discipline steps are discretionary and that you may skip them, because that is the reservation the court described. If a union contract covers the employee, its discipline and grievance terms apply as well. See writing a Minnesota employee handbook.

How does firing for refusal affect unemployment benefits?

An employee fired for refusing work is ineligible for unemployment benefits only if the refusal was employment misconduct, meaning a serious violation of the standards of behavior you have the right to reasonably expect. A deliberate refusal of a reasonable instruction can qualify; inability does not.

Under Minn. Stat. § 268.095, subd. 4, a discharged applicant “is ineligible for all unemployment benefits according to subdivision 10 only if” the discharge was for employment misconduct. Subdivision 6 defines it as “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.”

In Schmidgall v. FilmTec Corp., 644 N.W.2d 801 (Minn. 2002), the Minnesota Supreme Court wrote: “When an employee’s refusal to carry out a directive of the employer is deliberate, calculated, and intentional, then the refusal is misconduct.” The court decided that case under an earlier court-made standard, writing that “we need not reach whether Tilseth has been superseded by subsequent legislation.” The current statute provides that its definition “is exclusive and no other definition applies” (subd. 6(e)). A one-time refusal gets a closer look: “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)” (subd. 6).

The unemployment law judge looks at what the employee did, not at whether you followed your handbook. In Stagg v. Vintage Place Inc., 796 N.W.2d 312 (Minn. 2011), the employer skipped a step of its progressive discipline policy, and the court wrote: “Thus, the focus of the inquiry is the employee’s conduct, not that of the employer.” It added 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.”

One more rule affects a suspension: “A suspension from employment without pay that is of an indefinite duration or is for more than 30 calendar days is considered a discharge at the time the suspension begins” (subd. 5). See contesting an unemployment claim as an employer.

What must an employer tell an employee fired for refusing work?

If a fired employee asks in writing within the statute’s time limit, you must give the truthful reason for the firing in writing. Minnesota’s statute sets short time limits for the request and your answer, so I suggest checking its current text the day a request arrives and answering promptly.

Minn. Stat. § 181.933, subd. 1 provides: “An employee who has been involuntarily terminated may, within 15 working days following such termination, request in writing that the employer inform the employee of the reason for the termination. Within ten working days following receipt of such request, an employer shall inform the terminated employee in writing of the truthful reason for the termination.” The statement you give is protected: “No communication of the statement furnished by the employer to the employee under subdivision 1 may be made the subject of any action for libel, slander, or defamation by the employee against the employer” (subd. 2).

The truthful reason is the one you acted on when you decided. When I helped an employer revise its letter answering this kind of request, I suggested stating the reason the company had acted on and cutting a fact it learned only after the termination date, because that fact could not have been part of the decision. Its emails also mentioned write-ups that were missing from the records it had sent the employee, so I asked for them to decide whether they had to go to the employee as well.

What should a Minnesota employer check before disciplining a refusal?

Before disciplining an employee who refused assigned work, I suggest confirming five facts, because each one answers a question a judge, an unemployment law judge, or the employee’s attorney will ask:

1. The reason. You asked why, and no answer points to an illegal order, a danger, discrimination, a disability, a work injury, pregnancy, religion, leave, a meeting about religious or political matters (including joining or supporting a labor organization), or coworkers acting together.
2. The instruction. It was clear, possible, and repeated in writing after the first refusal.
3. The record. The warning states the facts in neutral words, and it predates any protected request.
4. The handbook. You followed the steps it promises, or it reserves your discretion to skip them.
5. The reason letter. If the employee asks, the reason you give is the one you acted on and matches the file.

For the wider set of tools, see managing problem employees in Minnesota. If you would like me to analyze a planned discipline or termination for a refused assignment and tell you which protections it could trigger, email [email protected] with a brief description and the warnings you have issued. More on my Minnesota employment law practice is on the practice page.