Tardiness & Missed Work: Basis for Losing Unemployment Compensation

Employers are understandably frustrated when, without prior notice, their employees are frequently late or miss work entirely. Fortunately, Minnesota statute offers employers an effective legal recourse.

Employment Misconduct

When employees fail to show up to work on time or at all, this behavior can be considered ‘employment misconduct’ under Minnesota law. Employment misconduct can be grounds for termination and disqualify an employee from receiving unemployment compensation benefits. This has been upheld in multiple Minnesota court cases. The below case excerpt offers a good summary of relevant Minnesota law:

Whether an employee engaged in employment misconduct presents a mixed question of fact and law. Stagg v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn.2011). Whether the employee committed a particular act is an issue of fact. Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn.App.2006). This court views questions of fact in the light most favorable to the decision of the ULJ and gives deference to the ULJ’s credibility determinations. Id. Findings of fact will be upheld if they are supported by substantial evidence in light of the entire record. Minn.Stat. § 268.105, subd. 7(d)(5). Whether the facts constitute employment misconduct is a question of law, which this court reviews de novo. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn.2002).


An employee who is discharged for employment misconduct is ineligible for unemployment benefits. Minn.Stat. § 268.095, subd. 4(1). “Employment misconduct means any intentional, negligent, or indifferent conduct, on the job or off the job that displays clearly: (1) a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee; or (2) a substantial lack of concern for the employment.” Id., subd. 6(a) (2010). An employee’s refusal to abide by the employer’s reasonable policies ordinarily constitutes employment misconduct. Schmidgall, 644 N.W.2d at 804. Minnesota law allows an employer to establish and enforce reasonable rules governing employee absences. Wichmann v. Travalia & U.S. Directives, Inc., 729 N.W.2d 23, 28 (Minn.App.2007).


As part of Cunningham’s job responsibilities, Wal–Mart expected him to keep his areas clean and to properly maintain the product signs. Wal–Mart also required employees to call in to report any absence from a scheduled shift. Should an employee not report to work for three consecutive days, it was considered a voluntary resignation. Cunningham missed five consecutive shifts without calling in. 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. Because Cunningham’s conduct violated Wal–Mart’s reasonable expectations, we agree with the ULJ that such conduct could constitute employment misconduct under Minn.Stat. § 268.095, subd. 6(a)(1). But that does not end the analysis.


The ULJ erred by failing to consider Minn.Stat. § 268.095, subd. 6(b)(1) (2009 Minn. Laws ch. 15, § 9, at 47–48), in his decision. That section provides: “Regardless of paragraph (a), the following is not employment misconduct: (1) conduct that was a consequence of the applicant’s mental illness or impairment.” Minn.Stat. § 268.095, subd. 6(b)(1). Before this subdivision was enacted, the statute did not address mental illness or impairment and provided only that “absence because of illness or injury with proper notice to the employer [is] not employment misconduct.” Minn.Stat. § 268.095, subd. 6(a) (2008).

Tips for Employers

When arguing that termination and denial of unemployment compensation benefits to an employee was legal, employers and their attorneys should point to prior warnings to the errant employee and the negative impact of their inconsistent attendance. To aid in this potential argument, employers would be wise to proactively and meticulously log employees’ tardiness and missed work.

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