People treat the unemployment hearing as a preliminary. It is not. It is the only evidentiary proceeding the case will ever get. The same unemployment law judge who hears it also decides the request for reconsideration afterward — Minn. Stat. § 268.105, subd. 2(e), sends it back to that judge unless the judge has left the department, is on extended leave, or has been removed from the proceedings — and subd. 2(c) forbids that judge from considering evidence that was not submitted at the hearing. The Minnesota Court of Appeals then reviews on certiorari, on that same record, on the grounds listed in subd. 7(d). Nothing added later gets in. A twenty-minute telephone hearing, often taken from a car or a break room, produces the record on which a benefits decision, an overpayment, and an employer’s tax experience are all resolved.
Two other features of chapter 268 surprise people. Every deadline in the appeal path is written in the statute as calendar days — in those words, which is why nobody should be guessing. And you cannot go from the judge’s decision straight to the Court of Appeals. The reconsideration step is not optional.
How long is the deadline to appeal an unemployment determination?
Minn. Stat. § 268.101, subd. 2(f), states it:
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. The determination must contain a prominent statement indicating the consequences of not appealing.
Two things in that sentence do work. The period is stated by the legislature as “calendar days,” not business days. And it runs from sending — not from receipt, not from the day you opened the envelope or noticed the message in the online account. An amended determination under § 268.101, subd. 4, carries the same clock: it “is final unless an appeal is filed by the applicant or notified employer within 45 calendar days after sending.”
The judge has no discretion at the back end. Section 268.105, subd. 1a(c), provides that the unemployment law judge “must issue a decision dismissing the appeal as untimely if the judge decides the appeal was not filed within 45 calendar days after the sending of the determination.”
There is a trap for anyone who files an appeal and then thinks better of it. An appeal may be withdrawn by notice and is then dismissed by order — but if a party later files a new appeal, § 268.105, subd. 3(c), provides that “the original 45-calendar-day period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 by the notice of withdrawal and order of dismissal,” and the new appeal “may only be filed by mail or facsimile transmission.” For this purpose “appeals” includes a request for reconsideration. Subd. 3(d).
What actually happens at the hearing
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.” Minn. Stat. § 268.105, subd. 1(a). The method is discretionary — subd. 1(c) — which in practice means the telephone. Hearing rules “need not conform to common law or statutory rules of evidence and other technical rules of procedure.” Subd. 1(b).
Everything is recorded. Section 268.105, subd. 5(a), requires that “[a]ll testimony at any hearing must be recorded,” and that a copy of the recording and of the exhibits be furnished to a party at no cost during the reconsideration and certiorari windows and while either is pending. Ordering that recording is the first move on any reconsideration worth filing.
The most damaging thing a party can do is not show up — or show up in the wrong way. Section 268.105, subd. 1a(b):
If the appealing party fails to participate in the hearing, the unemployment law judge has the discretion to dismiss the appeal by summary decision. By failing to participate, the appealing party is considered to have failed to exhaust available administrative remedies unless the appealing party files a request for reconsideration under subdivision 2 and establishes good cause for failing to participate in the hearing. Submission of a written statement does not constitute participation. The applicant must participate personally and appearance solely by a representative does not constitute participation.
An applicant who sends a lawyer and stays off the call has not participated. A party who mails in a written narrative instead of testifying has not participated.
One provision cuts the other way. Under subd. 1a(a), “[w]hen 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.” These cases usually turn on whose account of the last conversation is believed, and a decision that resolves that conflict without saying why is vulnerable.
Why the record closes when the hearing ends
Section 268.105, subd. 2(c), is the provision that makes the hearing dispositive:
In deciding a request for reconsideration, the unemployment law judge must not consider any evidence that was not submitted at the hearing, except for purposes of determining whether to order an additional hearing.
An additional hearing is available on narrow terms. The judge must order one if a party shows that evidence not submitted at the hearing “(1) would likely change the outcome of the decision and there was good cause for not having previously submitted that evidence; or (2) would show that the evidence that was submitted at the hearing was likely false and that the likely false evidence had an effect on the outcome of the decision.” The same paragraph defines “good cause” as “a reason that would have prevented a reasonable person acting with due diligence from submitting the evidence.” Not knowing the evidence mattered is not that reason.
Judicial review is no wider. Under subd. 7(d), the Court of Appeals may affirm or remand, and may reverse or modify only “if the substantial rights of the petitioner may have been prejudiced” because the decision is unconstitutional, in excess of statutory authority or jurisdiction, made upon unlawful procedure, affected by other error of law, “unsupported by substantial evidence in view of the hearing record as submitted,” or arbitrary or capricious. The Minnesota Supreme Court has described the posture as reviewing the judge’s “factual findings in the light most favorable to the decision,” leaving them undisturbed where the record reasonably tends to sustain them, while reviewing de novo whether a particular act constitutes disqualifying misconduct. Stagg v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011).
Can you skip reconsideration and go straight to the Court of Appeals?
No, and this is where cases die quietly. Section 268.105, subd. 1a(a), provides that “[t]he unemployment law judge’s decision is final unless a request for reconsideration is filed under subdivision 2.” Subdivision 7(a) then defines what the Court of Appeals reviews: the writ of certiorari runs “to the department” to “review the unemployment law judge’s decision on reconsideration.” There is no certiorari from the initial decision.
The two clocks, quoted from the statute:
- Request for reconsideration. “Any party, or the commissioner, may within 45 calendar days of the sending of the unemployment law judge’s decision under subdivision 1a, file a request for reconsideration asking the judge to reconsider that decision.” § 268.105, subd. 2(a). The judge “must issue a decision dismissing the request for reconsideration as untimely if the judge decides the request for reconsideration was not filed within 45 calendar days after the sending of the decision under subdivision 1a.” Subd. 2(f).
- Certiorari. The Court of Appeals reviews the decision on reconsideration “provided a petition for the writ is filed with the court and a copy is served upon the unemployment law judge or the commissioner and any other party within 45 calendar days of the sending of the unemployment law judge’s decision on reconsideration under subdivision 2. Three days are added to the 45-calendar-day period if the decision on reconsideration was mailed to the parties.” Subd. 7(a).
Filing and service are both inside the period, and the three-day addition is conditioned on mailing — it is not a general grace period.
Cost is not a barrier for the applicant: an applicant “may not be charged fees, costs, or disbursements of any kind in a proceeding before an unemployment law judge, the Minnesota Court of Appeals, or the Supreme Court of Minnesota,” § 268.105, subd. 6(b), with “[n]o filing fee or cost bond … required” and a free transcript on issuance of the writ, subd. 7(c). An employer petitioning for the writ pays the filing fee, and pays the department for a written transcript if it asks for one. Subd. 7(b). Allowed benefits keep being paid “regardless of any request for reconsideration or petition to the Minnesota Court of Appeals,” subd. 3a(a) — though a reversal converts them into a repayable overpayment, subd. 3a(b).
Quit or discharge: what the statute actually asks
The merits sit in Minn. Stat. § 268.095, and the two branches are not symmetrical.
A quit disqualifies unless one of the exceptions in subd. 1 applies — among them a good reason caused by the employer, quitting “within 30 calendar days of beginning the employment” where the employment was unsuitable, medical necessity or the need to care for an immediate family member, loss of child care for a minor child, domestic abuse, sexual assault, harassment or stalking, and relocating to accompany a military spouse or a spouse whose job was transferred. The medical and child-care exceptions carry preconditions that are easy to fail. The medical exception applies only if the applicant informed the employer of the medical problem, requested accommodation, and no reasonable accommodation was made available. The child-care exception applies only if the applicant made reasonable effort to obtain other child care and requested time off or other accommodation from the employer, and no reasonable accommodation is available.
“Good reason caused by the employer” is defined exclusively in subd. 3 — a reason “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) adds the step that sinks most of these claims: 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.” Paragraph (g) says the definition “is exclusive and no other definition applies.”
A discharge is the mirror image: under subd. 4, a discharged applicant is ineligible only if discharged for employment misconduct or aggravated employment misconduct. Subdivision 6(a) defines the former:
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.
Subdivision 6(b) then carves ten categories back out, including inefficiency or inadvertence, “simple unsatisfactory conduct,” inability or incapacity, “good faith errors in judgment if judgment was required,” and absence because of the applicant’s own illness or injury, or to care for an immediate family member, “with proper notice to the employer.” Where the discharge rests on a single incident, subd. 6(d) makes that “an important fact that must be considered.” Subdivision 6(e), like subd. 3(g), makes the definition exclusive.
Definitions matter more than labels. 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.” 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; a suspension without pay “that is of an indefinite duration or is for more than 30 calendar days” is a discharge as of the day it begins; and constructive discharge does not apply either. Subd. 5(a)–(c).
In Stagg, the Minnesota Supreme Court held that an employer’s failure to follow its own progressive discipline policy is beside the point: “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.” 796 N.W.2d at 316. It overruled contrary court of appeals authority. Id. at 317 n.1. Stagg construed an earlier version of subd. 6(a), but the operative phrase it applied is the same language the current statute uses. Handbook-breach arguments belong in a contract case, not in the unemployment file.
The severance agreement that promises not to contest your claim
It does not bind anyone who matters. Minn. Stat. § 268.069, subd. 2, provides that “[a]ny agreement between an applicant and an employer is not binding on the commissioner in determining an applicant’s entitlement,” that entitlement “must be determined based upon that information available without regard to a burden of proof,” and that “[t]here is no presumption of entitlement or nonentitlement to unemployment benefits.” Subdivision 3 closes the door on workarounds: “There is no equitable or common law denial or allowance of unemployment benefits.”
So a separation agreement can control what the employer says; it cannot control what the department decides. Two related provisions frame the rest: all issues “are determined by a preponderance of the evidence,” § 268.031, subd. 1, and the chapter “is remedial in nature and must be applied in favor of awarding unemployment benefits,” with any provision that would preclude benefits “narrowly construed,” subd. 2.
What the decision does — and does not do — in your other case
Employees with a parallel claim should read § 268.105 before testifying, not after. Subdivision 1a(d) says flatly that “[d]ecisions of an unemployment law judge are not precedential.” Subdivision 5a goes further:
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, regardless of whether the action involves the same or related parties or involves the same facts.
And subd. 5(b) restricts the testimony itself: it “may not be used or considered 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 the restriction “does not apply to criminal proceedings.” Recorded testimony and other evidence “may later be made available only under a district court order,” and a subpoena is not a district court order. Subd. 5(a).
For anyone also pursuing a claim under the Minnesota Whistleblower Act or running the Minnesota Human Rights Act deadlines, that cuts both ways: a win at the hearing will not carry over, and a loss should not follow you — but the human-rights-agency exception is real, and criminal proceedings are outside the shield entirely. Wages already earned are a separate track under the final paycheck statute, and the best hearing exhibits usually come out of the personnel file — see the Personnel Record Review Act.
Madgett Law, LLC
Madgett Law, LLC represents applicants and employers in Minnesota unemployment matters — preparing and trying § 268.105 hearings, building the exhibit record while it can still be built, drafting requests for reconsideration under subd. 2, and petitioning for certiorari review under subd. 7. The firm also advises on how an unemployment separation interacts with a whistleblower, discrimination, or wage claim before anyone testifies. If a determination or a judge’s decision has been sent to you, the 45-calendar-day clock is already running — Send us a message or call 612-470-6529.
Sources: Minn. Stat. § 268.101, subd. 2(f) (determination final unless appealed within 45 calendar days after sending), subd. 4 (amended determination; same 45-calendar-day period). § 268.105, subd. 1(a) (de novo due process hearing; notice not less than ten calendar days before the hearing), subd. 1(b) (rules need not conform to rules of evidence), subd. 1(c) (method of hearing discretionary); subd. 1a(a) (written findings; credibility explanation; decision final unless reconsideration filed), subd. 1a(b) (failure to participate; exhaustion; written statement and representative-only appearance are not participation), subd. 1a(c) (mandatory dismissal of an untimely appeal — 45 calendar days after sending of the determination), subd. 1a(d) (decisions not precedential); subd. 2(a) (reconsideration within 45 calendar days of sending), subd. 2(c) (no evidence outside the hearing; additional-hearing standard; “good cause” defined), subd. 2(e) (reconsideration decided by the same judge unless that judge has left the department, is on extended leave, or has been removed), subd. 2(f) (dismissal of untimely reconsideration; finality and judicial review); subd. 3(c) (withdrawal does not suspend or restart the original 45-calendar-day period; refiling by mail or facsimile only), subd. 3(d) (“appeals” includes reconsideration); subd. 3a(a)–(b) (benefits paid pending review; reversal creates an overpayment); subd. 5(a) (all testimony recorded; free copy during specified windows; later access only by district court order), subd. 5(b) (testimony not usable in other proceedings; human rights agency and criminal exceptions); subd. 5a (no collateral estoppel in any other forum); subd. 6(b) (no fees or costs charged to an applicant); subd. 7(a) (certiorari to review the decision on reconsideration; petition filed and served within 45 calendar days of sending; three days added if mailed), subd. 7(b) (employer filing fee and transcript cost), subd. 7(c) (free transcript, no filing fee or cost bond for an applicant), subd. 7(d) (six grounds for reversal or modification). § 268.095, subd. 1 (exceptions to quit ineligibility, including the 30-calendar-day unsuitable-employment exception, the clause (7) medical notice-and-accommodation precondition, and the clause (8) child-care reasonable-effort-and-accommodation precondition), subd. 2(a)–(b) (quit defined; no constructive quit), subd. 3(a), (c), (g) (good reason caused by the employer — three elements, duty to complain, exclusive definition), subd. 4 (discharge disqualifies only for employment misconduct or aggravated employment misconduct), subd. 5(a)–(c) (discharge defined; layoff is a discharge; suspension of indefinite duration or more than 30 calendar days; no constructive discharge), subd. 6(a) (definition of employment misconduct), subd. 6(b) (ten categories that are not misconduct), subd. 6(d) (single incident), subd. 6(e) (exclusive definition). § 268.069, subd. 2 (no burden of proof, no presumption, applicant–employer agreement not binding on the commissioner), subd. 3 (no equitable or common law denial or allowance). § 268.031, subd. 1 (preponderance of the evidence), subd. 2 (remedial; disqualifying provisions narrowly construed). Stagg v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011) (findings viewed in the light most favorable to the decision; whether an act is disqualifying misconduct reviewed de novo), 316 (employer’s compliance with its own progressive discipline policy is not part of the misconduct inquiry), 317 n.1 (overruling contrary authority). All statutory text verified against revisor.mn.gov, 2025 edition; no pending-amendment notice appeared on § 268.105, § 268.101, § 268.095, § 268.069, or § 268.031, and the most recent amendment shown for § 268.105 is from the 2023 session. This article is general legal information about Minnesota law. It is not legal advice, it does not create an attorney–client relationship, and no particular outcome is promised or implied.