Employment Misconduct Under Minn. Stat. § 268.095: The List of Things That Are Not Misconduct

Three things in Minn. Stat. § 268.095 catch nearly everyone reading a denial letter for the first time. I lead with them on the phone.

Nothing you did after the job ended can make you ineligible. Subdivision 7: “An applicant may not be held ineligible for unemployment benefits under this section for any acts or omissions occurring after the applicant’s separation from employment with the employer. A layoff because of lack of work is considered a separation from employment.” So the employer that runs an exit audit two weeks later has found something the statute won’t let it use.

Even a full misconduct denial runs out. Subdivision 10(a) ends the ineligibility once the applicant has been paid enough in subsequent covered employment to hit a statutory threshold. It’s a bar with a door in it, and the door is new work.

And the statute won’t leave “misconduct” to common sense, employer handbooks, or judicial gloss. It defines the term, lists ten categories of conduct that are not misconduct, and declares its own definition “is exclusive and no other definition applies.” Subd. 6(e). The appeal process under chapter 268 gets its own article, on the Minnesota unemployment appeal. This one is about what the hearing is actually deciding.

The definition is one sentence long

Minn. Stat. § 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.

It reaches negligent and indifferent conduct, not just intentional conduct, and it reaches conduct off the job. But the violation has to be serious, and the standard violated has to be one the employer had a right to expect reasonably. Under subd. 4, a discharged applicant is ineligible “only if” the discharge was for employment misconduct under subd. 6 or aggravated employment misconduct under subd. 6a. There’s no third route to a discharge denial.

Ten things the legislature says aren’t misconduct

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

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, in order to provide necessary care because of the illness, injury, or disability of an immediate family member of the applicant;
9. conduct that was a consequence of the applicant’s substance use disorder, unless the applicant was previously diagnosed with or treated for substance use disorder and has since failed to make consistent efforts to control it; 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 just not good enough has described clause 3 — “simple unsatisfactory conduct” — and clause 3 isn’t misconduct. An employee who made a bad call in a situation that demanded a call has described clause 6, as long as the judgment was exercised in good faith. Half the denials I read are clause 3 wearing a costume.

Clauses 7 and 8 hide a condition inside them: “with proper notice to the employer.” Whether notice was given, to whom, and when is a question the documents answer, so pull the record before the hearing, not after. See the Personnel Record Review Act and Minnesota’s earned sick and safe time rules. “Immediate family member” isn’t open-ended either; § 268.035, subd. 19a, defines it as “an individual’s spouse, parent, stepparent, grandparent, son or daughter, stepson or stepdaughter, or grandson or granddaughter.” No sibling. No in-law. No unmarried partner.

Two provisions qualify the list. Subdivision 6(c) claws part of clause 9 back: “Regardless of paragraph (b), clause (9), conduct in violation of sections 169A.20, 169A.31, 169A.50 to 169A.53, or 171.177 that adversely affects the employment is employment misconduct.” Substance use disorder can pull conduct out of misconduct. An impaired-driving violation that adversely affects the employment puts it back in, and that runs into workplace drug and alcohol testing. Subdivision 6(d) deals with the one-time incident: “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).” The same paragraph adds that a decision doesn’t have to say in so many words that it was considered.

One argument the list won’t support: the employer skipped a step in its own discipline policy. The Minnesota Supreme Court closed that door. Handbook-breach claims “are necessarily brought in a different forum,” not the unemployment file. Stagg v. Vintage Place Inc., 796 N.W.2d 312, 316 (Minn. 2011). Our article on the Minnesota unemployment appeal works through Stagg in full: its holding that the misconduct inquiry looks to the employee’s conduct and not the employer’s, the footnote overruling contrary court of appeals authority, and the fact that Stagg construed an earlier, two-pronged version of subd. 6(a) whose surviving prong is the same “serious violation” language the current statute uses.

Aggravated misconduct is a different animal, and it cancels wage credits

Subdivision 6a(a): “The commission of any act, on the job or off the job, that would amount to a gross misdemeanor or felony is aggravated employment misconduct if the act had a significant adverse effect on the employment.” It adds that “[a] criminal charge or conviction is not necessary to determine aggravated employment misconduct under this paragraph. If an applicant is convicted of a gross misdemeanor or felony, the applicant is presumed to have committed the act.”

That cuts both ways, and clients hear both halves from me. An acquittal, a dismissal, or a decision never to charge doesn’t foreclose the finding. But the act still has to be proved by a preponderance of the evidence, § 268.031, subd. 1, and the “significant adverse effect on the employment” is a separate element the employer has to carry. Subdivision 6a(b) adds a category for employees of a facility as defined in § 626.5572: for them, aggravated employment misconduct “includes an act of patient or resident abuse, financial exploitation, or recurring or serious neglect, as defined in section 626.5572 and applicable rules.” Subdivision 6a(c), like subd. 6(e), makes the definition exclusive.

The hit comes in subd. 10(c): on a discharge for aggravated employment misconduct, “wage credits from that employment are canceled and cannot be used for purposes of a benefit account under section 268.07, subdivision 2.” Those earnings stop counting toward establishing a benefit account at all. That’s why an employer’s decision to push a discharge into subd. 6a deserves a fight, not a shrug.

When you can quit and still collect

Subdivision 1 makes a quit disqualifying “except when” one of ten circumstances applies. Here are all ten:

1. the applicant quit because of a good reason caused by the employer, as defined in subd. 3;
2. the applicant quit to accept other covered employment “that provided equal to or better terms and conditions of employment,” but did not work long enough there to earn subsequent wages sufficient to satisfy the subd. 10 period;
3. the applicant quit within 30 calendar days of beginning the employment and the employment was unsuitable;
4. the employment was unsuitable and the applicant quit to enter reemployment assistance training;
5. the employment was part time and the applicant also had base-period full-time employment, separated from for non-disqualifying reasons, whose wage credits suffice to establish a benefit account under § 268.07;
6. the applicant quit after the employer gave notice of a layoff for lack of work within 30 calendar days — subject to the statute’s own limit that such an applicant remains ineligible through the end of the week containing the scheduled layoff date;
7. a serious illness or injury made it medically necessary to quit, or the quit was to provide necessary care because of the illness, injury, or disability of an immediate family member;
8. loss of child care for the applicant’s minor child caused the quit;
9. domestic abuse, sexual assault, or harassment or stalking of the applicant or an immediate family member necessitated the quit; and
10. the applicant quit to relocate to accompany a spouse who is in the military, or whose job was transferred to a new location making it impractical for the applicant to commute.

Exceptions 7 and 8 come with preconditions that are easy to fail and impossible to fix after the fact. Exception 7 “only applies if the applicant informs the employer of the medical problem and requests accommodation and no reasonable accommodation is made available,” and it carries the same substance-use-disorder limitation as subd. 6(b)(9). Exception 8 applies only where 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.” Both also raise a separate question, availability for suitable employment under § 268.085, subd. 1, which the commissioner has to determine. Exceptions 3 and 4 turn on “unsuitable” employment, defined at § 268.035, subd. 23a.

“Good reason caused by the employer” has three elements and a complaint requirement

The definition is closed. Under subd. 3(a), the reason has to be one “that is directly related to the employment and for which the employer is responsible,” “that is adverse to the worker,” and “that would compel an average, reasonable worker to quit and become unemployed rather than remaining in the employment.” Paragraph (g) says the definition “is exclusive and no other definition applies.”

Paragraph (c) is where these claims die. 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.” There are two more limits. A reason that arose “because of the applicant’s employment misconduct” isn’t a good reason, subd. 3(d). And notification of a future discharge, a layoff for lack of work included, isn’t one either, subd. 3(e).

Paragraph (f) gives a standalone route: an applicant “has a good reason caused by the employer for quitting if it results from sexual harassment of which the employer was aware, or should have been aware, and the employer failed to take timely and appropriate action.” The paragraph carries its own three-part definition of sexual harassment. That isn’t the standard for a discrimination or whistleblower claim, and a decision under it doesn’t resolve either one.

Quit or discharge? The employer’s label doesn’t decide it

A quit occurs only “when the decision to end the employment was, at the time the employment ended, the employee’s,” subd. 2(a). A layoff for lack of work is a discharge, and so is an unpaid suspension “that is of an indefinite duration or is for more than 30 calendar days,” subd. 5(a)–(b). There’s no constructive quit and no constructive discharge. Subd. 2(b), 5(c). And three narrower rules trip people up.

An employee told he’ll be discharged later, who “chooses to end the employment while employment in any capacity is still available, has quit the employment.” Subd. 2(c). Walking out early after being told the end is coming turns a discharge into a quit, and changes the whole burden of the case along with it.

Giving notice isn’t a quit by itself — “[a] notice of quitting in the future does not constitute a quit at the time the notice is given” — but trying to take the notice back can be. 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 the employer instead won’t let the employee work out the notice period, that’s a discharge as of the date work stops — unless it happens “within 30 calendar days before the intended date of quitting,” in which case the separation is treated as a quit under subd. 1 as of the intended quit date. Subd. 5(d).

Staffing-service work has its own rule. Within five calendar days after finishing a suitable assignment, an applicant who fails without good cause to request another suitable assignment, refuses one without good cause, or accepts employment with the staffing service’s client has quit. Subd. 2(e). But that applies “only if, at the time of beginning of employment with the staffing service, the applicant signed and was provided a copy of a separate document written in clear and concise language that informed the applicant of this paragraph and that unemployment benefits may be affected.” No signed, separate, plain-language notice at the start, no five-day rule. Otherwise, the end of a client assignment is a discharge from the staffing service. Subd. 5(e). Ask for that document first.

How long a denial actually lasts

Until subsequent covered work reaches the statute’s threshold. Subdivision 10(a) sets it at total wages paid for actual work performed in subsequent covered employment “sufficient to meet one-half of the requirements of section 268.07, subdivision 2, paragraph (a).” That paragraph gives a formula, not a dollar figure: wage credits of at least 5.3 percent of the state’s average annual wage, rounded down to the next lower $100. So the number moves, and it has to come from the department, not from anyone’s memory. Ineligibility “begins on the Sunday of the week that the applicant became separated from employment.” Subd. 10(b).

Two provisions sit over all of it, and both favor the applicant. Section 268.031, subd. 2, requires that “any statutory provision that would preclude an applicant from receiving benefits must be narrowly construed.” Section 268.069, subd. 3, closes the back door: “There is no equitable or common law denial or allowance of unemployment benefits.”

Subdivision 11 reaches all covered Minnesota employment in the base period or benefit year, full or part time, temporary or permanent, and employment covered by another state’s program or one established by an act of Congress. Wages you’ve already earned but haven’t been paid run on a separate track; see our article on the Minnesota final paycheck statute.

Find the clause first. Nearly every denial I’ve unwound came apart on subd. 6(b), not on some fine point of the appeal calendar.

Madgett Law, LLC represents applicants and employers in Minnesota unemployment matters, including the merits questions this article covers: whether a separation was a quit or a discharge under § 268.095, subds. 2 and 5; whether conduct falls inside subd. 6(a) or inside one of the ten carve-outs in subd. 6(b); whether a quit fits an exception in subd. 1; and whether a discharge is being pushed into subd. 6a with its wage-credit consequence. We also advise on how the unemployment record plays into a parallel wage, discrimination, or whistleblower claim, before anyone testifies. Send us a message or call 612-470-6529.

Sources: Minn. Stat. § 268.095, subd. 1 (ten exceptions to quit ineligibility, including the clause (6) layoff-notice limit, the clause (7) medical and family-care preconditions and substance-use-disorder limitation, and the clause (8) child-care preconditions), subd. 2(a)–(e) (quit defined; no constructive quit; leaving early after notice of future discharge; notice of quitting and attempted withdrawal; the staffing-service five-day rule and its separate-document precondition), subd. 3(a), (c), (d), (e), (f), (g) (good reason caused by the employer — three elements, duty to complain, misconduct-caused reasons, notification of future discharge, sexual harassment, exclusive definition), subd. 4 (discharge disqualifies only for employment misconduct or aggravated employment misconduct), subd. 5(a)–(e) (discharge defined; layoff is a discharge; suspension of indefinite duration or more than 30 calendar days; no constructive discharge; notice period not worked; end of a staffing-service assignment), subd. 6(a) (definition of employment misconduct), subd. 6(b) (the ten categories that are not employment misconduct), subd. 6(c) (impaired-driving carve-back to clause (9)), subd. 6(d) (single incident), subd. 6(e) (exclusive definition), subd. 6a(a)–(c) (aggravated employment misconduct; gross misdemeanor or felony act with significant adverse effect; no charge or conviction necessary; presumption on conviction; facility patient and resident abuse; exclusive definition), subd. 7 (no ineligibility for acts or omissions after separation; layoff is a separation), subd. 10(a)–(c) (duration of ineligibility; start on the Sunday of the week of separation; cancellation of wage credits for aggravated employment misconduct), subd. 11 (application to covered employment, including out-of-state and federal programs). Minn. Stat. § 268.035, subd. 19a (immediate family member defined), subd. 23a (suitable employment defined). Minn. Stat. § 268.07, subd. 2(a) (benefit account requirement stated as 5.3 percent of the state’s average annual wage rounded down to the next lower $100). Minn. Stat. § 268.031, subd. 1 (preponderance of the evidence), subd. 2 (remedial construction; disqualifying provisions narrowly construed). Minn. Stat. § 268.069, subd. 3 (no equitable or common law denial or allowance). Stagg v. Vintage Place Inc., 796 N.W.2d 312, 316 (Minn. 2011) (handbook-breach claims are necessarily brought in a different forum, not the unemployment file; full treatment of the case’s disposition, footnote, and prior-statute comparison appears in our article on the Minnesota unemployment appeal). Statutory text: revisor.mn.gov. Stagg: Caselaw Access Project archive, static.case.law. 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.