In the recent Minnesota Court of Appeals decision of Jenkins v. American Express Financial Corp., filed 9/6/05 (MN Ct. App.), the Court found misconduct for unemployment benefits by the employee's incarceration, and further found the employer had no duty to verify employment to allow employee to work through the work release program. 

The Employee was available to work after incarceration through a work-release program.  However, the employer was required to call in and verify employment eligibility in order for the employee to continue attending at work.  The employer did not call in to verify employment eligibility, terminating the employee instead due to her absenteeism. 

The decision reminded readers that incarceration is not a "per se" assumption of misconduct, and one must still examine whether the employee´s actions resulted in the inability or failure to report to work.  "[M]isconduct is the absence from work resulting from criminal activities," rather than the incarceration itself being the act of misconduct.  Generally speaking, inability to work due to incarceration is sufficient to show misconduct, but each case should be examined on its own specific facts and circumstances. 

In the present case, however, the Court found that termination for absenteeism due to incarceration constituted misconduct for purposes of disqualification from unemployment benefits.  While the employee attempted to argue that the reason for her termination was attributable to the employer´s actions in failing to verify her eligibility for work through the work-release program, the Court found it still all came back to the employee´s actions that resulted in her incarceration to begin with.  Moreover, the Court declined to impose a duty on the employer to comply with the work release program by verifying employment in this case.   

Questions regarding unemployment matters or this decision?  Contact Attorney Kathy Bray at ksb@hanftlaw.com or 218-529-2427.