By: James B. Sherman, Esq.
The Minnesota Court of Appeals recently determined to award unemployment compensation benefits to an employee who was suspended for unexcused absences and was later discharged when he failed to return to work following the suspension. The Court overturned a ULJ's decision that had gone in the employer's favor, based upon the employee's claim that his absences were due to the unexpected hospitalization of his immediate family member (his mother).
The Court in Hanson v. Crestliner, Inc., A08-2057 (Minn. Ct. App. Sept. 15, 2009) reasoned that the employee's unexplained absences were not so different from conduct "in which the average reasonable employee would engage under the circumstances." Because the employee's conduct did not violate the "standards of behavior the employer has the right to reasonably expect" under the same or similar circumstances, he was not guilty of "misconduct" that would disqualify him from receiving benefits.
The problem with this decision, and the reason why the employee was fired in the first place, was not that he may or may not have had an excuse for his absences, but that he failed to give any notice of his absences or report to his employer. The Court's decision, if it stands, would permit all sorts of belated claims by employees of "exigent circumstances" justifying unreported absences. The most disturbing thing about this case is the Court's decision to hypothesize about what a theoretical "reasonable employee" might have done, rather than examining the facts to determine whether or not under the circumstances this employee could and should have communicated with his employer about his absences.
A fact scenario such as this might also give rise to FMLA coverage. The unexpected hospitalization of an eligible employee's parent, spouse, or child due to a serious health condition could be protected even if no notice was immediately given. However, even under the protections of FMLA, the DOT regulations would have required this employee to provide notice to his employer "as soon as practicable." Too bad the Court in Hanson couldn't apply this same kind of simple and fair analysis in the unemployment compensation arena. After all, one would think that in this day of cell phones, etc., even in an emergency, a call could have been made at some point during the several days this employee was absent.
This case represents just another example of why employers are well advised to inquire about any excuses employees may have, even for unreported absences, before taking disciplinary action.
Questions? Please contact WS Shareholder and Senior Attorney James B. Sherman in our Minneapolis, MN office at (952) 746-1700, or jasherman@wesselssherman.com.
