Tim is teaching a FREE seminar on Landlord-Tenant Law, including evictions, security deposits, and abandoned tenant property.  The seminar will be held from noon - 1:00 p.m. on Wednesday 1/28/2015 at Tim's office, 2140-4th Avenue, Anoka MN 55303.  This seminar is geared for landlords, property managers, and attorneys who represent them, but is also applicable for tenants, tenant-rights' organizations, and tenant attorneys.  ATTORNEYS: The seminar has been approved for one standard CLE credit.  The event code is 200646.

Space is limited, so advance registration is required.  To register, please visit: https://www.eventbrite.com/e/evictions-security-deposits-abandoned-tenant-property-and-landlord-tenant-law-tickets-15252316088

There was one decision this week on attorney discipline from the Minnesota Supreme Court.  The case highlights the proposition that an attorney will be disbarred for misappropriating client funds and engaging in fraudulent conduct.  Here is the summary:

Al3-0435, In re Petition for Disciplinary Action against Tedman John Heim, a Minnesota Attorney,Registration No. 286047.

In this case, the attorney committed multiple acts of misconduct, namely, misappropriation of client funds, forgery of a client's signature on a settlement check, engaging in a pattern of false statements to his client and his law partner to conceal the misappropriation, submission of misleading documents to a court and opposing counsel, failure to deposit client funds into a trust account, failure to keep required trust account books and records,making unauthorized personal charges on his law firm's business credit card, and beingconvicted of a felony charge of check forgery/falsely endorsing a check, in violation of Minn. R. Prof. Conduct 1.4(a), 1.15(a), 1.15(c)(3), 1.15(c)(4), 1.15(h), 3.3(a), 4.1, 8.4(b), 8.4(c), and 8.4(d).

After a hearing, the referee recommended disbarment, and the parties stipulated (agreed) that disbarment was the appropriate discipline.  Accordingly, the attorney was disbarred.

Tim represents attorneys facing professional discipline, and consults with attorneys about whether a particular situation or proposed course of conduct implicates the Rules of Professional Conduct.  When faced with a situation that may implicate the Rules of Professional Conduct, Tim always recommends that an attorney seek an advisory opinion from the Office of Lawyers Professional Responsibility. 

WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation.  Reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  Also, Tim is licensed only in state and federal courts in Minnesota.  As such, any information provided in this blog post pertains only to those jurisdictions.  Further, you should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 450-9494 to set up an appointment to discuss your situation. 

This week there was one decision on unemployment benefits from the Minnesota Court of Appeals.  The case highlights the law that an applicant is not eligible for unemployment benefits if that applicant was discharged for employment misconduct, unless an exception applies.  Without further ado, here is the summary:


A14-1168, Keith G. Lassiter, Relator, vs. The Bulldog Restaurant NE, Inc., Respondent, Department of Employment and Economic Development,Respondent.

Relator challenges the decision of the unemployment-law judge (ULJ) that he was discharged for employment misconduct, arguing that (1) the ULJ failed to make the required credibility findings, (2) the evidence does not substantially support the ULJ’s findings, (3) the ULJ failed to adequately develop the record, and (4) his conduct reflects only an error in judgment.

Relator worked as a bouncer, and the misconduct in this case was physically touching a customer in violation of his employer's policy.  Relator had previously violated the no-contact policy and had been disciplined for it.  As such, the ULJ found that Relator had committed employment misconduct, and was not eligible for unemployment benefits.  The Court of Appeals affirmed the denial.

If you are denied unemployment benefits, or are an employer who wants to challenge a former employee's eligibility for benefits, your best bet is to meet with an attorney who handles unemployment appeals to discuss your options.  To that end, I represent both applicants and employers in unemployment appeals.  Please call (763) 450-9494 today to set up an appointment to discuss your situation.

WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation.  Reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  Also, Tim is licensed only in state and federal courts in Minnesota.  As such, any information provided in this blog post pertains only to those jurisdictions.  Further, you should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 450-9494 to set up an appointment to discuss your situation.  

If you’re out of work, the first question you may have is whether you are eligible for unemployment benefits.  The answer depends on whether you were laid off, fired, or quit.  Regardless, you should apply for unemployment benefits as soon as possible after losing or leaving a job.

LAID OFF OR FIRED: If you were laid off or fired, and assuming that you meet all of the other eligibility criteria, you are eligible to receive unemployment benefits unless you were laid off or fired because of employment misconduct.  Employment misconduct as “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.”  Minn. Stat. § 268.095, subd. 6(a).   So, unless you were laid off or fired for employment misconduct, and assuming that all of the other eligibility criteria are met, you are eligible to receive unemployment benefits.

QUIT: However, if you quit a job, you are not eligible for unemployment benefits unless you had good reason to quit caused by the employer, even if you meet all of the other criteria for eligibility.  A “good reason to quit caused by the employer” is  defined as “a reason (a.) that is directly related to the employment and for which the employer is responsible; (b.) that is adverse to the worker; and (c.) that would compel an average, reasonable worker to quit and become unemployed rather than remaining in the employment.”  Minn. Stat. § 268.095, subd. 3(a).  So, if you quit, you are generally ineligible to receive unemployment benefits unless you had good reason to quit caused by the employer.

APPEALS: After you apply for unemployment benefits, Unemployment Insurance Minnesota (“UIMN”) will issue a determination of whether or not you are eligible to receive unemployment benefits.  If either the employer or applicant is not satisfied with UIMN’s initial determination, that party may appeal the determination.  There are three stages in the appeal process.

First, an Unemployment Law Judge (“ULJ”) presides over an evidentiary hearing, usually conducted by telephone.  At the evidentiary hearing, the parties present evidence about a former employee’s eligibility for unemployment benefits.  For example, if an employee was fired, the former employer would attempt to show that the employee was fired for employment misconduct, and vice versa.  The ULJ will make findings of fact and determine whether the applicant is eligible for unemployment benefits.

Second, if either the employer or applicant is not satisfied with the ULJ’s determination, that party can file a Request for Reconsideration (“RFR”) with the same ULJ.  The RFR must allege that factual errors, errors of law, or procedural errors were made at the evidentiary hearing.  The ULJ will then review the evidence presented at the evidentiary hearing and decide whether any errors occurred.  After reviewing the evidentiary hearing, the ULJ will then issue an order either affirming, reversing, or re-opening the evidentiary hearing.

Third, a party not satisfied with the outcome of the Request for Reconsideration can appeal to the Minnesota Court of Appeals.  Generally, the Court of Appeals will defer to the findings and determinations made by the ULJ, unless the ULJ clearly made an error of law, the hearing violated the applicant’s constitutional rights, or a procedural error occurred.  Minn. Stat. § 268.105, subd. 7(d).

THE BOTTOM LINE: If you want to appeal UIMN’s initial determination of eligibility or ineligibility, you should contact an attorney as soon as possible because you only have a limited amount of time in which to appeal.  Generally, you want to prevail at the evidentiary hearing because winning at the subsequent stages of the appeal process is much more difficult, largely because the subsequent appeals are reviews of what happened at the evidentiary hearing.  For this reason,  I strongly recommend hiring an attorney to represent you at the evidentiary hearing rather than later in the appeal process.

Baland Law Office, P.L.L.C. represents both applicants and employers at the evidentiary hearing and throughout the appeals process.  Please call (763) 450-9494 today to set up an appointment to discuss your situation.

WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation.  Tim is only licensed in state and federal courts in Minnesota, and the information contained in this blog post may not be applicable to other juris  Reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  You should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 450-9494 to set up an appointment to discuss your situation.

There were two decisions on unemployment benefits from the Minnesota Court of Appeals this week.  The first repeats an often-heard theme that an applicant who commits employment misconduct is ineligible for unemployment benefits.  The second stands for the proposition that an appeal must be timely filed or be dismissed and affirms an administrative decision that an overpayment of unemployment benefits is subject to Revenue Recapture.  Here are the summaries:

A14-1061, Jerome Mitchell, Relator, vs. Swift Pork Company, Respondent, Department of Employment and Economic Development, Respondent.

Relator Jerome Mitchell challenges the decision of the unemployment law judge (ULJ) that he is ineligible for unemployment benefits because he committed employment misconduct.  More specifically, Mitchell had been disciplined for violating work rules involving food safety and sanitation.  We affirm.

A14-0650, Ge Yang, Relator, vs. Department of Employment and Economic Development, Respondent.

Relator challenges two unemployment law judge (ULJ) decisions, one dismissing his appeal from an ineligibility determination as untimely, and the other concluding that his overpayment debt is properly subject to revenue recapture under the Minnesota Revenue Recapture Act.  On the timeliness issue, the Court of Appeals held that the 20-day statutory deadline for filing an appeal must be strictly construed, regardless of mitigating circumstances.  On the Revenue Recapture issue, the Court of Appeals held that an overpayment of unemployment benefits was properly repaid through Revenue Recapture, and that DEED followed all of the s  We affirm.

If you are denied unemployment benefits, or are an employer who wants to challenge a former employee's eligibility for benefits, your best bet is to meet with an attorney who handles unemployment appeals to discuss your options.  To that end, I represent both applicants and employers in unemployment appeals.  Please call (763) 450-9494 today to set up an appointment to discuss your situation.

WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation.  Reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  Also, Tim is licensed only in state and federal courts in Minnesota.  As such, any information provided in this blog post pertains only to those jurisdictions.  Further, you should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 450-9494 to set up an appointment to discuss your situation. 

Three cases involving unpublished unemployment decisions were released today.  Two were affirmed and the third was actually reversed. The first one involves a case where it is an undisputed fact that the Relator quit her job. However, the Relator challenges the ULJ’s conclusion that none of the exceptions in Minn. Stat. § 268.095, subd. 1 apply to her case. In the second case, the Relator was found to be ineligible to receive unemployment benefits because he was neither available for nor actively seeking employment. The appellate court reversed the ULJ’s decision in the third case, granting the Relator’s request to reverse, but only based upon one of her three arguments -- that she had good reason to quit due to a consultant’s nonsexual and sexual harassment and her employer’s failure to address the Relator’s complaint when given the opportunity to do so. 

A14-1320   Terrylou Cripe-Scherek, Relator vs. MNKase LLC, Respondent, Department of Employment and Economic Development, Respondent.

Summary:  Relator Terrylou Cripe-Scherek appeals the decision of an unemployment-law judge (ULJ) that she was ineligible to receive unemployment benefits after quitting her employment. Because Cripe-Scherek did not request an accommodation prior to quitting her employment, we affirm.

Relator was employed at Fantastic Sam’s and was responsible for all of the day-to-day operations of the salon, including hiring and firing employees. Approximately six weeks before quitting, Relator Cripe-Scherek was diagnosed with deep vein thrombosis (DVT), a condition causing a blood clot to form in her leg.  Relator and her assistant manager discussed the fact that she could not continue performing her job—or any other job at Fantastic Sams—if she had to be seated 90 percent of the day.

 When Relator Cripe-Scherek quit, she told the owner that she was quitting because “her doctor put her on restrictions and she wasn’t able to work.” Relator Cripe-Scherek never asked the owner for additional leave or any other accommodation, which was one of the major reasons the appellate court affirmed the ULJ’s decision and also because she did not meet the statutory requirements for any of the exceptions under Minn. Stat. § 268.095, subd. 1.

The general rule is that an applicant is ineligible for unemployment benefits if that applicant quit employment without meeting a statutory exception.  In this case, Relator's appeal was based on the statutory exception that it was medically necessary for her to quit.  However, Relator did not ask her employer to make a reasonable accommodation for her condition prior to quitting.  As such, the Court of Appeals affirmed the denial of benefits. 

A14-0471  Keith Travis, Relator, vs. Wal-Mart Associates, Inc., Respondent, Department of  Employment and Economic Development, Respondent.

Summary: Relator challenges an unemployment-law judge’s decision that he is ineligible to receive unemployment benefits because he was discharged for employment misconduct and because he was neither available for nor actively seeking employment.

Because of a hand injury, Travis was asked to provide Wal-Mart with medical certification several times.  Travis failed to provide one, even after he was informed that such certification was required and given nearly a month to provide it. The ULJ further found that Wal-Mart discharged Travis because he failed either to return to work after leaving to acquire the certificate. Record evidence supports these facts and is not disputed by Travis on appeal.

During the hearing, the Relator told the ULJ that his hand was still bothering him, therefore, he was not actively seeking employment and the Relator’s wife testified that because of his hand injury, he couldn’t do anything. Therefore, the Court upheld the ULJ’s decision that Travis is ineligible to receive benefits due to his unavailability for and failure to actively seek suitable employment.

Accordingly, the Court of Appeals affirmed the denial.

A14-0287  Jami Sternquist, Relator, vs. PAL Management, Inc., Respondent, Department  of Employment and Economic Development, Respondent.

 Summary:  In this certiorari appeal, relator requests reversal of the decision of an unemployment-law judge (ULJ) that she is ineligible for unemployment benefits because she did not quit her employment due to a good reason caused by the employer. Relator argues that she had good reason to quit because (1) she was paid less due to her gender; (2) she was harassed by a consultant who acted in a supervisory role; and (3) she was uncomfortable managing her regional manager’s wife.

The ULJ determined that Sternquist was eligible for unemployment benefits from September 6 through September 14 because she was discharged from employment for reasons other thanemployment misconduct. But the ULJ determined that Sternquist was ineligible for unemployment benefits beginning September 15 because Sternquist notified Pawn America that she planned to quit her job as of September 19, and she quit for reasons other than a good reason caused by the employer. Sternquist requested reconsideration,and the ULJ affirmed her decision.

The Court of Appeals determined that the consultant’s nonsexual and sexual harassment, coupled with Pawn America’s failure to address Sternquist’s complaints when given a reasonable opportunity to do so, would compel an average, reasonable employee to quit and become unemployed.  Accordingly, the Court of Appeals reversed, concluding that the ULJ erred by determining that Sternquist did not have a good reason to quit caused by her employer.  Because the case was reversed based on the alleged sexual harassment and failure of the employer to respond, the Court of Appeals did not address Relator's other arguments.

If you are denied unemployment benefits, or are an employer who wants to challenge a former employee's eligibility for benefits, your best bet is to meet with an attorney who handles unemployment appeals to discuss your options.  To that end, I represent both applicants and employers in unemployment appeals.  Please call (763) 450-9494 today to set up an appointment to discuss your situation.

WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation.  Reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  Also, Tim is licensed only in state and federal courts in Minnesota.  As such, any information provided in this blog post pertains only to those jurisdictions.  Further, you should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 450-9494 to set up an appointment to discuss your situation. 

There were three unpublished Minnesota unempolyment opinions this week.  In all three cases, the Relator challenges the ULJ's decision that the Relator was discharged for employment misconduct.  These cases are a good reminder that misconduct generally renders an otherwise eligible applicant ineligible for benefits.  All three cases were affirmed.

A14-0728   Timothy J. Fish, Relator, v.. Young Men's Christian Association - YMCA Brainerd, Respondent, Department of Employment and Economic Development,Respondent.

Summary:  Relator challenges the unemployment-law judge’s (ULJ) decision that he was discharged for employment misconduct and ineligible for unemployment benefits.  Fish made three arguments in support of his position.

First, Fish argues that the ULJ should not have considered an incident from 2008 in evaluating whether this current incident was misconduct. The incident from 2008 was not an isolated event, but served as the starting point in tracking Fish’s progressively deficient work performance.

Second, Fish argues that his conduct was reasonable under the circumstances and had no negative impact on the YMCA. The YMCA was negatively impacted because, like Auger, an employee complained about Fish’s conduct.

Third, Fish argues that he used his best discretion and committed an error in good faith. Good-faith errors in judgment if judgment is required are not employment misconduct. Judgment was not required. Fish punched in to work, not to lie down. He was not in a position to judge whether he should work or lie down. Even if judgment was required, Fish’s conduct was unreasonable

If Fish were not feeling well when he punched in, it would have been reasonable for him to either (1) punch out, rest, and punch in again when he was feeling well, or (2) call his supervisor and seek permission to lie down. The ULJ appropriately determined that Fish engaged in employment misconduct that resulted in him being ineligible for unemployment benefits.  Affirmed.

A14-0283    Kenny R. Johnson, Relator, vs. TFG LLC, Respondent, Department of Employment and Economic Development, Respondent.

Summary:  Relator Kenny Johnson challenges an unemployment-law judge’s (ULJ) determination that he is ineligible for unemployment benefits because he was   discharged for employment misconduct after he yelled at and threatened coworkers. Because an employer has a right to expect an employee to refrain from inappropriate and offensive conduct, Johnson’s profane treatment of a coworker and insubordination constitute employment misconduct. Accordingly, the ULJ did not err in determining that Johnson is ineligible for unemployment benefits.  Affirmed.

 A14-0470    Jesse Marshall, Relator, vs. St. John's Lutheran Home of Albert Lea, Respondent, 
 Department of Employment and Economic Development, Respondent.

Summary:  Relator challenges a final decision of an unemployment law judge (ULJ) that he is ineligible for unemployment benefits because he was discharged for employment misconduct for excessive tardiness. Relator argues that (1) the ULJ erred by determining that relator’s repeated tardiness constituted employment misconduct; (2) the ULJ abused his discretion by declining to grant a new evidentiary hearing; and (3) relator did not receive a fair hearing. We affirm.

If you are denied unemployment benefits, or are an employer who wants to challenge a former employee's eligibility for benefits, your best bet is to meet with an attorney who handles unemployment appeals to discuss your options.  To that end, I represent both applicants and employers in unemployment appeals.  Please call (763) 450-9494 today to set up an appointment to discuss your situation.

WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation.  Reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  Also, Tim is licensed only in state and federal courts in Minnesota.  As such, any information provided in this blog post pertains only to those jurisdictions.  Further, you should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 450-9494 to set up an appointment to discuss your situation. 

There were three decisions this week on unemployment benefits from the Minnesota Court of Appeals.  The first case involved a consolidated appeal.  The second case is somewhat unusual because it affirms the denial of unemployment benefits before a certain date, but reverses a denial of unemployment benefits after a certain date because the relator was actively seeking suitable employment after that date.  The third is another reminder that an applicant is ineligible for unemployment benefits if the applicant was terminated by employment misconduct.  All decisions were released on Monday 12/8/14.The ULJ found that Beckwith “had multiple violations of policy on cell phone use, punching out for lunch, and being absent or leaving earlywithout permission, and he had incidents of recklessness and a final incident of swearing
in front of customers.”  In other words, Beckwith committed employment misconduct -- a violation of the standards of behavior that an employer has the right to reasonably expect -- and was ineligible for unemployment benefits.  The ULJ's decision was affirmed.

There was one decision on unemployment benefits this week from the Minnesota Court of Appeals.  The case highlights the importance of filing an appeal by the deadline stated in the Determination of Eligibility or Ineligibility.  If that deadline is missed, even if you have the best reasons for appealing, and your case is a real "slam dunk," the appeal is over.

A14-0483, Sherrie M. Aubin, Relator, vs. Family Dollar, Inc., Respondent, Department of Employment and Economic Development,Respondent.

In this certiorari appeal, relator Sherrie M. Aubin argues that (1) the unemployment-law judge (ULJ) erred by concluding that she failed to file a timely appealand (2) respondent Minnesota Department of Employment and Economic Development’s (DEED) online appeal system violated her due-process rights.  More specifically, because the online appeal system was not "affirmatively misleading," it was not an unconstitutional due process violation.  We affirm.

If you are denied unemployment benefits, or are an employer who wants to challenge a former employee's eligibility for benefits, your best bet is to meet with an attorney who handles unemployment appeals to discuss your options.  To that end, I represent both applicants and employers in unemployment appeals.  Please call (763) 450-9494 today to set up an appointment to discuss your situation.

WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation.  Reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  Also, Tim is licensed only in state and federal courts in Minnesota.  As such, any information provided in this blog post pertains only to those jurisdictions.  Further, you should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 450-9494 to set up an appointment to discuss your situation. 

After several weeks of not issuing any decisions, there was one decision today on unemployment benefits from the Minnesota Court of Appeals.  The case is noteworthy because the Relator was represented by an attorney, but fairly ordinary in that the Minnesota Court of Appeals affirmed the decision of the Unemployment Law Judge that the Relator had been terminated for misconduct.

Here is the summary:

A14-0288, Nancy Sager, Relator, vs. Fraser, Respondent, Department of Employment and Economic Development,
Respondent.

Relator Nancy Sager challenges the determination by an unemployment law judge (ULJ) that Sager is disqualified from receiving unemployment benefits because she committed employment misconduct by failing to provide medical documentation to support her continued leave of absence. Sager argues that (1) the ULJ’s factual findings
are not supported by substantial evidence in the record; (2) the ULJ erred by attributing to her the failure of her medical provider to complete and provide the medical forms; and (3) her failure in submitting the medical forms was not misconduct but was instead caused by inadvertence, her reasonable belief that it was not necessary, or a good faith error in judgment. We affirm.

If you are denied unemployment benefits, or are an employer who wants to challenge a former employee's eligibility for benefits, your best bet is to meet with an attorney who handles unemployment appeals to discuss your options.  To that end, I represent both applicants and employers in unemployment appeals.  Please call (763) 450-9494 today to set up an appointment to discuss your situation.

WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation.  Reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  Also, Tim is licensed only in state and federal courts in Minnesota.  As such, any information provided in this blog post pertains only to those jurisdictions.  Further, you should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 450-9494 to set up an appointment to discuss your situation.