August 31, 2011

Better late than never? Employee wins unemployment claim after two month absence

Posted in Absenteeism, Absenteeism, Attendance, Leaves of Absence, Misconduct, Unemployment Benefits, Unexcused Absence tagged , , , at 9:29 am by Tom Jacobson

In a case that proves that things are not always as they seem, a Minnesota employee has been awarded unemployment benefits despite her failure to report to work for two months.

The case, Genemo v. Donatelle Plastics, Inc., involves Hawi Genemo who was employed by Donatelle Plastics, Inc.  After learning that her mother was seriously ill in a remote area of Africa, Genemo requested and was granted a leave of absence to visit and care for her mother.  The leave was to run from April 21 to May 19, 2010, and she was also told she could request additional time off if needed.

Unfortunately, while in Africa Genemo encountered civil unrest and a lack of mail, electricity, phone service and Internet. Thus, she was unable to contact Donatelle about her situation.  Because of the lack of contact, Donatelle discharged her effective May 27, 2010.  Genemo returned in July, 2010.

Genemo was initially disqualified from unemployment benefits on the basis that her failure to keep in contact with her employer was employment misconduct. The Minnesota Court of Appeals disagreed.  Relying on Minn. Stat. § 268.095, Subd. 6(b)(8), the court noted that it is not employment misconduct when an employee is absent “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.”  Because the initial notice was proper and because further notice was deemed “impractical if not impossible,” the court ruled that even though Donatelle’s decision was reasonable, Genemo’s absence and failure to contact Donatelle was not employment misconduct, so she was deemed eligible for unemployment benefits.

The case reminds us that things are not always as they seem.  Here, the employee’s unique circumstances fit within a narrow exception in Minnesota’s unemployment statute.  The lesson is that jumping to conclusions about an employee’s situation can lead to costly litigation.

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Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

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