September 14, 2011

A poke is no joke

Posted in Misconduct, Physical Contact, Single Incident, Unemployment Benefits, Workplace Violence tagged , , , at 10:01 am by Tom Jacobson

In a case involving a workplace “poking” incident, the Minnesota Court of Appeals has ruled that there is no “single incident” exception to employment misconduct under the Minnesota Unemployment Insurance Law.

The case, Potter v. Northern Empire Pizza, Inc., involved Roger Potter and his coworker, Dylan Kaste, both of whom were employed as Domino’s Pizza delivery drivers in the Fargo-Moorhead area.  While on the job, Kaste grabbed Potter’s keys (which were lying near a delivery bag), yelled at Potter, then “threw” the keys onto a desk.   Potter got upset, and later in their shift, he poked Kaste in the side as Kaste passed by.  Kaste “spun around” and yelled, “you suck.” The company discharged Potter the next evening and suspended Kaste. The only reason for Potter’s termination was the single poking incident.

Potter began collecting unemployment benefits, but the Minnesota Department of Employment and Economic Development (DEED), later determined he was ineligible for benefits and ordered him to repay the benefits he had received. An Unemployment Law Judge (ULJ) agreed with DEED’s decision, and Potter appealed his case to the Minnesota Court of Appeals.

The main issue before the Court was whether the single poking incident was misconduct that disqualified Potter from eligibility for unemployment benefits. The Court first summarized the “rise and fall” of the “single incident exception” under the Minnesota Unemployment Insurance Law and ultimately concluded that the exception no longer exists:

The former single-incident or hothead-incident exception to the definition of employment misconduct no longer exists and employers may reasonably expect employees to refrain from engaging in even single acts of combative physical contact. The single incident of Potter intentionally poking his coworker in the ribcage constitutes employment misconduct. Because no exception to Potter’s employment misconduct applies, we affirm the ULJ’s determination that Potter is ineligible to receive unemployment benefits.

However, the Court also noted that although there is no “single incident exception,” the law still requires a ULJ to consider whether a discharge was for “only a single incident” when determining whether misconduct occurred.

For employers and employees and employers alike, the lesson is that when at work, a poke is no joke:  even if it is a single combative act, it can be misconduct under the Minnesota Unemployment Insurance Law.

For more information about this article, please contact me at

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 Schultz, PA


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