January 2012

By: James B. Sherman, Esq.

Minnesota employers know that winning unemployment compensation eligibility decisions before the Department of Employment and Economic Development (DEED) can be difficult. Giant retailer Wal-Mart recently prevailed in a case before DEED but found out that the Court of Appeals can be an even tougher forum for employers.

At the hearing before a ULJ of DEED, the evidence in the case showed the employee frequently failed to complete his assigned tasks as a part-time overnight stocker at the Sam’s Club in Fridley. The employee advised that a stroke he suffered prior to working at Sam’s Club caused him difficulty with comprehension and multi-tasking. Management accommodated the employee by walking him through his work area near the end of his shift to point out any chores left undone. However, management claimed this practice was discontinued when the employee complained of being “singled out.” When the employee’s performance problems resumed, Wal-Mart managers told him to go home and return to work with a performance improvement plan per company policy. When the employee left work and did not return, he was eventually discharged for job abandonment under the company’s no call/no show policy.

The ULJ ruled the employee engaged in “misconduct” rendering him ineligible for unemployment compensation benefits. On appeal, the court’s decision turned on whether the employee’s failure to call in or return to work was “a consequence” of his mental impairment per the Minnesota U.C. statute. The court found in the affirmative on this issue primarily based on the employee’s testimony that he did not come up with an action plan because he could think of nothing to fix his mental problems. Since he could not come up with an action plan, the employee claimed he did not return to work because he was under the impression he was sent home and could not return without the action plan management requested of him. Despite the fact that the ULJ heard the hearing testimony and was arguably in a far better position to judge the sincerity of all the witnesses, the appellate court seemed to really stretch to conclude this individual had proven his admitted misconduct – job abandonment – was a consequence of the residual effects of a stroke.

So what lessons can be taken from this case? First, employers are justified in thinking wins are hard to come by when it comes to unemployment compensation eligibility. Second, however, is that whenever a claimant attributes his or her misconduct to any kind of medical impairment, employers must know to react accordingly. If the employee is correct in claiming misconduct was consequential to such an impairment, do not challenge eligibility. However, where an employer believes an employee is falsely/mistakenly blaming their workplace behavior on an impairment, do not be passive. Instead, the employer must go after the employee’s claims; for example, show that whatever impairment may exist simply would not affect the kind of behavior in question.

Had this Wal-Mart employee been effectively cross-examined at the hearing, the record may not have allowed the Court of Appeals to interpret the record so liberally as to conclude the employee’s misconduct was medically excused. Of course, had Wal-Mart’s managers clearly communicated to this employee that he was to return to work the next scheduled workday – with or without a plan of action – there would have been no excuses to deal with. Thus, the third and final lesson of this case (equally applicable to ADA, FMLA and other legal concerns) – is that one can never communicate too clearly with an employee who is claiming to suffer from a mental impairment. In fact, where termination is a possibility, it makes sense to put things in writing regardless of whether any impairment is present.