Marshall's Law

Six "Suitability" Suits for Unemployment Benefits

By Marshall H. Tanick, Attorney at Law

Jobless employees in Minnesota are obligated under Minn. Stat. § 268.085, subd. 13c(1)(2) to seek "suitable" re-employment to be eligible for unemployment compensation benefits.

The "suitability" issue usually arises in two different contexts: when an employee is offered a different position by the same employer and refuses it or when an employee does not seek other work after losing a job.

The Minnesota Court of Appeals addressed both of these situations in a half-dozen recent rulings, reaching different results in the sextet of suits.

Accountant Architects

Three of the cases concerned accountants and an architect.

In one, a veteran accountant was entitled to unemployment compensation benefits after refusing a bookkeeping position in LaMaack v. Adecco USA Inc., 2008 WL 2727370 (Minn. Ct. App. Jul. 15, 2008) (unpublished). An unemployment law judge with the Department of Employment & Economic Development (DEED) ruled that the claimant, who had 36 years of accounting experience, was disqualified from receiving benefits after he turned down a bookkeeping position offered to him through a temporary agency following the closure of a business where he had been working on a temporary basis as an accountant.

His claim was rejected under the statute, which disqualifies employees from unemployment benefits for eight weeks for refusal to accept "suitable" employment. Under Minn. Stat. § 268.035, subd. 23a, a "suitable" job is one "reasonably related to the applicant's qualifications." The statutory considerations also include the length of unemployment, prospects for securing employment in the employee's customary occupation and the distance of the employment from the applicant's residence.

But the Appellate Court reversed, holding that the claimant was eligible for unemployment benefits. Reviewing the "legal question" of suitability de novo, it concluded that there were both "some similarities . . . [and] differences" between the accounting position that the claimant previously held and the bookkeeper position that was tendered to him. But the newly-offered position was not "reasonably related to the applicant's qualifications," based upon a "number of factors."

The main consideration included the "prior training and experience" of the applicant. In his previous job, the employee had prepared financial reports and performed cash and inventory management analysis. The new position, however, would have "mainly included" clerical duties, which "primarily involved working with customers." The applicant's "prospects" were significant because there was no evidence that he had "unfavorable prospects of obtaining employment at his skill level" as an accountant.

But another accountant was barred from benefits for failing to seek suitable work in Ryks v. Dept. of Employment & Economic Development, 2008 WL 2966673 (Minn. Ct. App. Aug. 5, 2008) (unpublished). After her job as an accountant ended, the claimant decided to make a career change. She went to Mexico, unsuccessfully looking for an English language teaching position. She was denied unemployment benefits on grounds that she was not "actively seeking suitable employment" under § 268.035, subd. 23a, in the "same labor market."

The Appellate Court affirmed, holding that the "plain statutory definition" barred her claim because accounting, not teaching, constituted "suitable employment"...based on her education and work experience." Although she "preferred" to teach, she had no experience and little training in that field. Her attempt to "confine her [job] search to teaching positions" transgressed the statute, as did her search in work outside of Minnesota, which remained her "permanent residence," while looking for a job in Mexico.

An unemployed architect who faced a moral quandary was denied unemployment benefits in O'Brien v. Aerotek Inc., 2008 WL 3835818 (Minn. Ct. App. Aug. 19, 2008) (unpublished). The architect was deemed disqualified by DEED when he rejected a temporary position while awaiting a prospective permanent job offer, turning down the former because he thought it improper to take that position and then leave it soon if the other one materialized.

Sympathizing with the architect's agony, the Appellate Court affirmed because the applicant failed to accept "suitable" employment, as required under § 268.085, subd. 13c(a)(2). It was understandable for the jobless architect "to consider the moral issue of joining but then quickly abandoning" the pending position and "the possible impact on the company and his own integrity." However, those factors do not constitute "a statutory basis...to remain eligible for unemployment benefits after rejecting suitable employment."

The applicant lacked "good cause to reject" the temporary offer "while waiting to hear definitively" about the permanent position. Therefore, he was not entitled to benefits under the suitability section of the law.

But a business student obtained reversal of denial of benefits in Biblenko v. Dept. of Employment & Economic Development, 2008 WL 4471102 (Minn. Ct. App. Oct. 7, 2008) (unpublished). He was denied benefits by an unemployment judge on grounds that he checked the "no" box on his application, indicating that he was unwilling to cease attending business school to accept a "suitable" job offer.

The Appellate Court reversed, holding that there was no evidence that he invoked limitations on his job search while going to school or that he could not be available for a work shift that did not conflict with his school schedule.

Diligence Denied

An unemployment applicant's failure to diligently seek other work resulted in denial of his claim for benefits in Burk v. Department of Employment & Economic Development, 2008 WL 2796575 (Minn. Ct. App. Jul. 22, 2008) (unpublished). The employee, who had worked for 27 years as a machine operator, was unable to continue that work after he was injured in an automobile accident, which prevented him from standing for long periods of time and limited his ability to lift heavy objects. He was disqualified from receiving unemployment compensation benefits by an unemployment law judge, who determined that he was not actively seeking suitable employment, and the Appellate Court affirmed on grounds that the employee was required to "apply for a position that is suitable for skill level," while also participating in "approved job training counseling." The employee's testimony was "inconsistent" and "unclear" regarding his efforts to seek other work. By applying only for three other jobs and not regularly attending workforce centers for job training counseling, the employee's efforts were not "adequate to show genuine attachment to the workforce."

Similarly, an unemployment compensation applicant was disqualified in Bushard v. Contractors Edge Inc., 2008 WL 2885948 (Minn. Ct. App. July 29, 2008) (unpublished), for inadequately searching for "suitable" re-employment. The unemployment law judge properly refused to allow documentation of the claimant's job search activities as reconsideration after he failed to mention it at the hearing. Moreover, the employee's own testimony that he "kind of waited" six months after his lay-off to look for suitable new work reflected a lack of diligent job search in contravention of the obligation to "actively" seek another job under § 268.085, subd. 16(a).

These half-dozen cases show that the right to unemployment benefits is not granted cavalierly to jobless employees. They must engage in diligent efforts to find or accept a position that is reasonably related to their prior skills and training.