Minnesota Unemployment: Being Fired Does Not Disqualify You, and the First Hearing Is the Only One You Get

A discharge disqualifies you only for misconduct, and misconduct is defined

The definition is one sentence. Section 268.095, subd. 6(a):

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.

Every word is a limit. The violation has to be serious, and the standard violated one the employer had a right to expect reasonably. Subdivision 6(e) closes the door on anything else: “The definition of employment misconduct provided by this subdivision is exclusive and no other definition applies.”

The ten things the Legislature says are not misconduct

Subdivision 6(b) opens, “Regardless of paragraph (a), the following is not employment misconduct,” and lists:

1. conduct that was a consequence of the applicant’s mental illness or impairment;
2. conduct that was a consequence of the applicant’s inefficiency or inadvertence;
3. simple unsatisfactory conduct;
4. conduct an average reasonable employee would have engaged in under the circumstances;
5. conduct that was a consequence of the applicant’s inability or incapacity;
6. good faith errors in judgment if judgment was required;
7. absence because of illness or injury of the applicant, with proper notice to the employer;
8. absence, with proper notice to the employer, to provide necessary care because of the illness, injury, or disability of an immediate family member;
9. conduct that was a consequence of substance use disorder, subject to a prior-diagnosis limitation in the same clause; and
10. conduct that was a consequence of the applicant, or an immediate family member, being a victim of domestic abuse, sexual assault, or harassment or stalking.

Clauses 2, 3, 5, and 6 carry the ordinary case. An employer that fires someone for being slow, disorganized, or not good enough has described “simple unsatisfactory conduct,” and clause 3 says that is not misconduct. Clauses 7 and 8 hide a condition inside them — “with proper notice to the employer” — which is a documentary question. Two provisions qualify the list: subdivision 6(c) claws back part of clause 9 for impaired-driving conduct “that adversely affects the employment,” and subdivision 6(d) makes a discharge that “involved only a single incident … an important fact that must be considered.”

One argument the list will not support is that the employer skipped a step in its own discipline policy. The Supreme Court closed that door in Stagg v. Vintage Place Inc., 796 N.W.2d 312, 316 (Minn. 2011): “the focus of the inquiry is the employee’s conduct, not that of the employer,” and “whether an employer follows the procedures in its employee manual says nothing about whether the employee has violated the employer’s standards of behavior.” Handbook-breach claims “are necessarily brought in a different forum.” Id. (Stagg construed an earlier, two-pronged version of subd. 6(a); the “serious violation of the standards of behavior” language it applied is the language the current statute uses.)

Quit or discharge is decided by the statute, not by the paperwork

A quit occurs only “when the decision to end the employment was, at the time the employment ended, the employee’s,” and “the theory of a constructive quit does not apply.” § 268.095, subd. 2(a)–(b). A discharge occurs “when any words or actions by an employer would lead a reasonable employee to believe that the employer will no longer allow the employee to work for the employer in any capacity”; a layoff for lack of work is a discharge; an unpaid suspension “of an indefinite duration or … for more than 30 calendar days” is a discharge as of the day it begins; constructive discharge does not apply either. Subd. 5(a)–(c).

Two narrower rules trip people up. An employee told he will be discharged later, “who chooses to end the employment while employment in any capacity is still available, has quit.” Subd. 2(c). And an employee “who seeks to withdraw a previously submitted notice of quitting in the future has quit the employment, as of the intended date of quitting, if the employer does not agree that the notice may be withdrawn.” Subd. 2(d).

If you did quit, subdivision 1 lists ten exceptions that preserve eligibility, the first being “a good reason caused by the employer as defined in subdivision 3.” That definition is closed and paragraph (g) says so: the reason must be “directly related to the employment and for which the employer is responsible,” “adverse to the worker,” and one “that would compel an average, reasonable worker to quit and become unemployed rather than remaining in the employment.” Paragraph (c) is where most of these fail — an applicant subjected to adverse working conditions “must complain to the employer and give the employer a reasonable opportunity to correct the adverse working conditions before that may be a good reason caused by the employer for quitting.”

The telephone hearing is the trial

The chief unemployment law judge must set “a de novo due process hearing” and send notice “not less than ten calendar days before the date of the hearing,” § 268.105, subd. 1(a), with discretion over the method, subd. 1(c) — in practice, the telephone. Hearing rules “need not conform to common law or statutory rules of evidence and other technical rules of procedure.” Subd. 1(b). Informal in procedure, final in effect.

Participation decides more cases than the merits do. 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 absent reconsideration and good cause — and the statute spells out what does not count: “Submission of a written statement does not constitute participation. The applicant must participate personally and appearance solely by a representative does not constitute participation.”

Everything is recorded: “All testimony at any hearing must be recorded,” and a copy of the recording and the exhibits must be furnished to a party at no cost during the reconsideration and certiorari windows and while either is pending. Subd. 5(a). One provision cuts the applicant’s way: “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.” Subd. 1a(a).

Three deadlines, all 45 calendar days, all running from sending

The Legislature wrote calendar days, in those words, and each clock runs from the department’s sending rather than your receipt.

• Appealing a determination. “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.” § 268.101, subd. 2(f). An amended determination under subd. 4 carries the identical period, and an untimely appeal must be dismissed, § 268.105, subd. 1a(c).
• Requesting reconsideration. Any party “may within 45 calendar days of the sending of the unemployment law judge’s decision under subdivision 1a, file a request for reconsideration.” § 268.105, subd. 2(a); untimely requests must likewise be dismissed, subd. 2(f). Reconsideration is a gate, not an option — the decision “is final unless a request for reconsideration is filed under subdivision 2,” subd. 1a(a), and the Court of Appeals reviews only “the unemployment law judge’s decision on reconsideration,” subd. 7(a).
• Certiorari to the Court of Appeals. The petition must be filed with the court and a copy served on the judge or commissioner and any other party “within 45 calendar days of the sending of the unemployment law judge’s decision on reconsideration.” § 268.105, subd. 7(a). “Three days are added to the 45-calendar-day period if the decision on reconsideration was mailed to the parties.” Filing and service both sit inside the period.

Withdrawing an appeal does not buy time: if a party files a new appeal after a withdrawal and dismissal, “the original 45-calendar-day period for appeal begins from the date of issuance of the determination and that time period is not suspended or restarted.” Subd. 3(c). Cost is not a barrier for the applicant — no fees, costs, or disbursements of any kind may be charged before a judge, the Court of Appeals, or the Supreme Court, subd. 6(b), with no filing fee or cost bond and a free transcript on issuance of the writ, subd. 7(c).

The decision does not travel to your other case

Anyone with a parallel claim should read two subdivisions before testifying. Subdivision 5a: “No findings of fact or decision or order issued by an unemployment law judge may be held conclusive or binding or used as evidence in any separate or subsequent action in any other forum, be it contractual, administrative, or judicial, except proceedings provided for under this chapter.” Subdivision 5(b) bars use of the testimony itself “for any purpose, including impeachment, in any civil, administrative, or contractual proceeding, except by a local, state, or federal human rights agency with enforcement powers, unless the proceeding is initiated by the department” — and that restriction “does not apply to criminal proceedings.” Decisions are also “not precedential.” Subd. 1a(d).

A severance clause promising the employer will not contest benefits binds nobody who decides them: “Any agreement between an applicant and an employer is not binding on the commissioner in determining an applicant’s entitlement,” and “[t]here is no presumption of entitlement or nonentitlement.” § 268.069, subd. 2. And subdivision 3: “There is no equitable or common law denial or allowance of unemployment benefits.”

What this page does not do

This describes the statute and the procedure. It does not tell you which clause of § 268.095, subd. 6(b), fits what happened. What is general is that the fight is usually inside subdivision 6(b) rather than on the calendar, that the record closes when the phone call ends, and that all three clocks above are 45 calendar days from sending. Related: was the firing itself lawful, and the wages you were already owed.