Articles

PERSPECTIVES

'Suitability' Suits Address Unemployment Compensation Benefits

By Marshall H. Tanick

Jobless employees in Minnesota have an obligation 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 Court of Appeals addressed both of these situations in five recent rulings, reaching different results in the quintet of cases. In one, it found the employee's rejection of a job offer was appropriate because the new position was not "suitable" for his skills and training. But in the others, the court deemed efforts by employees to find "suitable" re-employment inadequate, disqualifying them from receiving unemployment benefits.

Accountant Actions

A veteran accountant was entitled to unemployment compensation benefits after refusing a bookkeeping position in LaMaack v. Adecco USA Inc., 2008 WL 2727370 (Minn. App. July 15, 2008).

An unemployment law judge with the Department of Employment & Economic Development 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 Minn. Stat. § 268.085, subd. 13c(a)(2), 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."

But the Court of Appeals 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 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.

Of these factors, the consideration of the applicant's "prospects" was significant because there was no evidence that he had "unfavorable prospects of obtaining employment at his skill level" as an accountant.

The disparity in job duties, the employee's qualifications as a high-level accountant rather than a low-level bookkeeping clerk and the likelihood that he could find an accounting job with a reasonably foreseeable time yielded the determination that the new position offered to him was not "suitable." Therefore, in declining it, he remained eligible for unemployment compensation benefits.

But another accountant was barred from benefits for failing to seek suitable work in Ryks v. Department of Employment & Economic Development, 2008 WL 2966673 (Minn. App. Aug. 5, 2008).

After her job as an accountant ended, the claimant, who had an English language teaching degree, decided to make a career change. She went to Mexico but was unsuccessful in finding a teaching position there. 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 Court of Appeals 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 for work outside of Minnesota, which remained her "permanent residence," while looking for a job in Mexico.

Moral Matter

An unemployed architect who faced a moral quandary was denied unemployment benefits in O'Brien v. Aerotek Inc., 2008 WL 3835818 (Minn. App. Aug. 19, 2008).

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 Court of Appeals affirmed because the applicant failed to accept "suitable" employment, as required by statute. 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." But those factors do not constitute "a statutory basis . . . to remain eligible for unemployment benefits after rejecting suitable employment."

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

Diligence Denied

Another 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. App. July 22, 2008).

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. The incident 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.

The Court of Appeals confirmed. Under Minn. Stat. § 268.085, subd. 1(4), an employee must be "actively seeking suitable employment," which requires that the claimant make reasonable, diligent efforts . . . in obtaining suitable employment." This determination is made on a case-by-case determination. Under the statute, the employee was required to "apply for a position that is suitable for [his] skill level," while also participating in "approved job training counseling." But the employee's testimony was "inconsistent" and "unclear" regarding his efforts to seek other work. By applying for only 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. App. July 29, 2008), for inadequately searching for "suitable" re-employment.

The unemployment law judge properly refused to reconsider documentation of the claimant's job search activities 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 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 is reasonably related to their prior skills and training.

Marshall H. Tanick is an attorney with the law firm of MANSFIELD, TANICK & COHEN, P.A., in Minneapolis and St. Paul. He is certified as a Civil Trial Specialist by the Minnesota State Bar Association (MSBA) and represents employers and employees in a variety of workplace related matters.