April 21, 2011

“May” may mean “may” after all

Posted in Absenteeism, Attendance, Misconduct, Progressive Discipline, Unemployment Benefits tagged , , , , , at 12:13 pm by Tom Jacobson

The Minnesota Supreme Court rarely considers claims for unemployment benefits.  That is because most unemployment claims are resolved at the administrative level or by the Minnesota Court of Appeals.  So, when the Supreme Court decides an unemployment case, it’s worth noting.  The Court did so on April 20, 2011, and the decision relates to my post last June regarding Stagg v. Vintage Place, Inc. (When “may” means “must” in a progressive discipline policy, according to the Minnesota Court of Appeals).

In the Stagg case, an employee was fired because of his attendance problems.  The employer’s policies said that for attendance issues, the employee “may” be subjected to progressive discipline.  When it considered the case, the Court of Appeals ruled that despite the word “may” in the policy, the employer could not skip steps.  The appellate court reasoned that the employer’s only discretion was whether to discipline at all, and once the employer decided to discipline for the attendance problem, the employer had to follow each progressive step.  Because Stagg’s employer skipped a step and fired the employee, the court ruled that the employee’s absenteeism was not employment misconduct.

The Minnesota Supreme Court has now reversed the Court of Appeals (see Stagg v. Vintage Place, Inc., http://1.usa.gov/eJF7gk).  The Supreme Court held that when the issue in an unemployment benefits case is employee misconduct, the focus is on the employee’s conduct, not on the employer’s progressive discipline policies.  Specifically, the court stated, “[W]hether an employer follows the procedures in its employee manual says nothing about whether the employee has violated the employer’s standards of behavior. Put another way, an employee’s expectation that the employer will follow its disciplinary procedures has no bearing on whether the employee’s conduct violated the standards the employer has a reasonable right to expect or whether any such violation is serious.”  Because this employer’s attendance policies were clearly stated and communicated to the employee, the court said the employee’s violations were misconduct even though the employer skipped a step in its process.

However, the Supreme Court stopped short of interpreting “may” in this employer’s progressive discipline policy.  The court said that whether or not that language created a contract and whether such a contract was breached would be relevant in a breach of contract case brought by the employee against the employer, but they are not the standard for deciding “misconduct” for the purposes of deciding eligibility for unemployment benefits.

While the Supreme Court’s decision helps employers by clarifying the standard for determining “misconduct” in unemployment benefits cases, the meaning of “may” in a policy such as the one in the Staggcase remains unclear.  Thus, if an at-will employer wishes to retain as much flexibility as possible in its discipline policy, the policy should be written in a way that retains the employer’s discretion over not only when to discipline, but also over how to discipline.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

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