Author: Jasper Berg, J.D.

Telecommute and Unemployment in Minnesota

Telecommute and unemployment in Minnesota is a new concept and undeveloped from a case law perspective. In Minnesota, a person who telecommutes has the same rights as a worker in an office.

Thus, do not fear if you thought your role as a telecommuter affected your unemployment rights for MN.

Telecommute and Unemployment in Minnesota Laws

First, Minnesota unemployment laws do not define who is or who is not considered a telecommuter. Instead, the legal issue that impacts most telecommuters stems from wages and hours.

In other words, there isn’t a specific law exclusive to workers who telecommuted and are seeking unemployment benefits. A person who was classified as a remote worker or a telecommuter should review their eligibility as if their classification was not important.

On the other hand, if you were discharged from your job because of an issue specific to your classification as a telecommuter, then this is where the game will change. Being discharged because you were a telecommuter versus being discharged for an incident specific to your classification are two different issues.

Can you collect unemployment in Minnesota after being a telecommuter?

Absolutely – the fact you were a telecommuter does not automatically make you ineligible for unemployment benefits.

Likewise, the fact you were a telecommuter does not automatically make you eligible for unemployment benefits either.

What problems might you face if you combine Telecommute and unemployment in Minnesota?

The biggest problem this law office sees with workers trying to collect unemployment benefits after they telecommuted is reviewing which state they are eligible for benefits.

This law office represents applicants exclusive to Minnesota. That said, sometimes DEED tries to persuade or push applicants to another State. This isn’t necessarily always correct.

First, Minnesota law says a person who applies for unemployment benefits in a different state is automatically ineligible for unemployment in Minnesota. Second, benefits in Minnesota are likely higher than any other state.

If you need help with your claim, please contact an unemployment lawyer for help.

July 20, 2017
Business While Deployed is a Little Easier in Minnesota
Managing a business while deployed is an awful stress. I would think most military business owners know how difficult it might be to keep one hand on a business while the other hand is devoted to the battlefield. Adding the stress of a legal proceeding can heighten this awful stress.

Luckily, Minnesota has a rule that helps members of the military while they are deployed on TDY or otherwise.

Business While Deployed: Protection for Military Reservists

Minnesota statute 192.056 protects military reservists from Civil Court Proceedings. From a practical manner, this is what this might include stopping or delaying:
- Small claims court claims,
- Contract disputes,
- Collection matters,
- Employment issues, or
- Any other specific court proceeding.
What About National Guard Business Owners?

I think members of active duty or serving part-time have a strong argument why the Business While Deployed Rule applies to their deployment regardless whether they are a reservist or a member of the national guard.

As you can read, the rule uses the term “reservist”. But, I believe there is plenty of room for interpretation and public policy favors any member of the military. For what ever reason, Minnesota’s rule applicable to military members owning a business are directed towards a different rule for clarifying when it applies.

Under Minnesota statute 190.05, the term “military” is supposed to mean active service:

‘Active service’ means either state active service, federally funded state active service, or federal active service.

Now, military members past or present can see the flaws with their definition. In other words, we are stuck with the unknown when the rule might apply. As of the date of this post, the rule I am focused on, has never been litigated.

None the less, I think the most important point specific to the Business While Deployed Rule is this: Minnesota’s court system is supposed to acknowledge business owners who are deployed and reduce the risk of an unfair judgment.

At a minimum, I believe public policy supports this interpretation through and through.

Business While Deployed Extended to Spouses

Anybody who owns a business relies on support from their significant other. This support is heightened when we are talking about a military spouse.

Somewhat exciting for Minnesota’s business owners on deployment is the fact MN Statute 192.056 applies to a spouse too.

In other words, if I own a business with my spouse and I am deployed, the business owner (spouse or not) can ask the court to delay any and all civil proceedings from taking place. Really, this is a breath of fresh while military families put managing their communications, children and home life in front of any other pending claim.

Soldiers & Sailors Civil Relief Act

In case it isn’t obvious, the rules and protection under rule 192.056 is in addition to any rights and benefits military business owners have under the Soldiers & Sailors Civil Relief Act.

Thus, If you are a military business owner and need support, please contact me for help.
July 19, 2017
Medical Records for Unemployment: Tip #002

Medical records for unemployment seems like an odd combination, but it happens a lot.

Medical records can create good issues and bad issues for applicants to address. Before randomily submitting medical notes because you feel like you have nothing to loose, consider seeking advisement first.

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When a medical issue impacts our job performance, likely, there are medical records.

Unfortunately, Applicants in Minnesota are often tricked into assuming forms used by the unemployment office are helpful. If they were, then I wouldn’t need to address this issue.

Physical and mental health records for unemployment appeals can impact employees who quit their job and those discharged for employment misconduct.

Unemployment Tip # 002 – If an Applicant’s health is an issue, always consider seeking a formal written opinion from a treating physician that incorporates language form the Minnesota unemployment statute.

It is never a bad idea to seek help. But, if your physical or mental health is even remotely related to your unemployment appeal, you owe it to yourself to find additional support.

July 18, 2017
Applications: Unemployment Tip #001

An unemployment tip must have value. I decided to create a new series exclusive to unemployment tips.

If you are unemployed and reading my blog posts on a regular basis, I hope you find this helpful.

Thus, here is the first tip of many:

Unemployment Tip # 001 – Before applying for unemployment benefits, always ask which unemployment rule or rules can help you become or remain eligible for benefits.

For many people, Minnesota statute 268.095 is very impactful. Of course, there are many others. In the legal world, issue spotting is the name of the game.

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If you are looking for more tips about applications, consider Tip #017.

July 17, 2017
MN Taxable Estate Rules and Protection

Yes, MN taxable estate laws are strict. Unfortunately, Minnesota is 1 of 14 states (including the District of Columbia) that have an estate tax.

In 2024, the state tax exemption amount is a math problem. As you can see under Minnesota Statute 291.016, the exemption amount is $5,000,000 minus an amount based on the date of death.

Luckily, a trust can be a powerful tool in estate planning to mitigate and reduce estate taxes, providing individuals with a strategic way to preserve and transfer their wealth to future generations. Estate taxes, also known as inheritance taxes, can significantly diminish the value of an estate passed on to heirs. Establishing a trust allows individuals to navigate the complexities of tax laws and optimize their estate for tax efficiency.

Credit Shelter Trusts Reduce Tax Liability

One common way to alleviate estate taxes is through a bypass trust or credit shelter trust. This type of trust is structured to leverage the available estate tax exemptions. These trusts allow individuals to make use of their applicable exclusion amount by sheltering a portion of their estate from taxation.

Bypass or credit shelter trusts are particularly beneficial for married couples, as it helps maximize the combined exemption amount, protecting a more significant portion of their wealth from estate taxes.

Irrevocable Trusts and a MN Taxable Estate

Another type of trust used to prevent a MN taxable estate is an irrevocable living trust. Unfortunately, placing assets into an irrevocable trust relinquishes ownership and control of those assets.

That said, it effectively removes them from their taxable estate. This can result in a substantial reduction in the overall value subject to estate taxes.

Other Taxing Reasons for a Trust

In addition to minimizing the taxable estate, trusts offer flexibility in distributing assets to heirs. Specific instructions can be outlined in the trust document, ensuring that the assets are distributed according to the individual’s wishes while taking into consideration potential tax implications for beneficiaries.

It’s crucial to consult with legal and financial professionals when considering the use of trusts in estate planning. They can provide personalized guidance based on the individual’s financial situation and goals, ensuring that the trust is structured in a manner that complies with tax laws and achieves the desired tax savings.

Overall, utilizing a trust as part of an estate plan can be a strategic approach to reduce estate taxes and preserve wealth for future generations.

July 17, 2017
My Reconsideration Review With the Same Unemployment Law Judge
The reconsideration review process for unemployment benefits is conducted by the same unemployment law judge that reviewed the phone appeal.

In my experience, most applicants are surprised by this. Like you, I agree that this process is unfair. But, some of my most exhilarating moments as an attorney has been during the reconsideration process.

Thus, I do not think the reconsideration review laws should be a reason to refrain from filing an appeal or giving up entirely.

Reconsideration Review Laws

The laws for an unemployment reconsideration come from Minnesota statute 268.105. The part related to a review for an unemployment reconsideration says the following:
A request for reconsideration must be decided by the unemploymentlaw judge who issued the decision under subdivision 1a unless that judge:
- (1) is no longer employed by the department;
- (2) is on an extended or indefinite leave; or
- (3) has been removed from the proceedings by the chief unemploymentlaw judge.
Exceptions to the Same Judge

As we can see in the above referenced rule, there are three exceptions to the general rule. In my experience, the exception that applies most often is when an Applicant specifically asks for their judge to be reviewed. Unfortunately, this is a difficult request because it usually requires finding a reason the Judge was impartial.

Sometimes, impartiality is obvious because the Judge will suggest they have an alliance with a specific group or employer. Other times, the Applicant needs to search for an specific reason or find out anecdotally.

Proceeding with a Reconsideration

Once an applicant turns their attention towards the drafting stage for a reconsideration, I think the next step is related to a transcript. From there, using Unemployment Laws from Chapter 268 is generally the next step for issue spotting.

Finally, if you are in need of help and want to talk with an unemployment lawyer, please reach out. I wish you the best.
July 14, 2017
Getting Copies of Your Unemployment Transcripts
Unemployment transcripts are extremely important because they help formulate an appeal. For example, obtaining your transcript can help applicants:
- Identify testimony,
- Make reference to lies,
- Support procedural errors.
Thus, obtaining a transcript from an unemployment case is a process I believe every applicant should engage.

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Unemployment Transcripts: Rule in Minnesota

The rule for obtaining a transcript depends on the type of appeal an applicant is seeking. Although not always the case, Minnesota rule 3310.2917 supports applicants in their process of obtaining copies, evidence and testimony from their hearing. Even better, they generally waive court fees too.

Unfortunately, the unemployment office does not always agree. For this reason, making reference to Minnesota’s constitution along with a more diligent approach can sometimes support a transcript request.

Again though, the type of appeal (court of appeals versus a request for reconsideration) will dictate the process utilized for obtaining unemployment transcripts.
July 10, 2017
Non-Compete Agreements and Minnesota’s Blue Pencil Doctrine

The Blue Pencil Doctrine is a law in Minnesota that allows a Court to change and make a contract clause more “reasonable”. Unfortunately, what is reasonable is going to be very fact specific and likely exclusive to the parties involved.

Generally, the blue pencil rule or doctrine has applied against non-compete agreements. But, it would not surprise me to find or see a court apply it to other contracts unrelated to employment.

In my experience, the blue pencil doctrine in Minnesota is a difficult rule because it is left to the mercy of the courts. For those wishing to read a court case reviewing this issue, consider reading Klick v. Crosstown State Bank, Inc.

Otherwise, contact me directly.

June 29, 2017
Aid and Attendance Benefits through the VA
Aid and Attendance benefits are fantastically easy to request. The idea behind today’s article is to share how and what to think about when military families are seeking aid and attendance.

Thus, I hope you find value in this short outline.

Aid and Attendance Benefits: First Issue

The first issue is determining how to seek this all important benefit. When I advise a Veteran and their family on this issue, I always ask where the Veteran is living. Here is why this question is important.
- If the Veteran (or their spouse / dependent) is living in a nursing home, VA Form 21-0779 is used to request aid and attendance.
- If the Veteran lives anywhere else, then VA Form 21-2680 is the better form to utilize.
VA Forms for Aid and Attendance

Between you and me, I like the second form much better. First, I believe it gives more control to the family seeking this benefit on behalf of their loved ones. Second, it requires seeking help from the Veteran’s )or their spouse / dependent) personal medical doctor.

Compare this to VA Form 21-0779. Although helpful in requesting benefits, I generally dislike this type of application because it asks the nursing home for their input.

The point I am trying to make is this: I trust my personal medical doctor more than my nursing home. Also, experience tells me it is easier to acquire help from a medical professional versus a nursing home administrator.

Pension Management Centers for VA Benefits

Once a Veteran and their family has selected the form that applies to their situation, the next step is the process of submitting it to the right people or department.

Because the aid and attendance benefit aligns with pension benefits, the PMC or Pension Management Center is the place that reviews the VA forms referenced above. As of the date of this article, there are 3 different Veteran PMC offices and they review issues based on the state where the Vet resides.

Here is a link to the three Pension Management Centers.

Nobody is Getting Rich from their Pension

The greater the disability, the greater the benefit. Very few military families and Veterans contact me because they are looking to get rich from their aid and attendance benefits. This is an earned benefit about acquiring help and assistance.

As a result, I think it is to the Claimant’s advantage to describe their personal situation as a detriment. In other words, if the Veteran (or spouse / dependent) needs help cooking bathing, using the restroom, etc., then stop the doctor or nursing home administrator from sugar coating the need. Again, the greater the disability, the greater the benefit.

Aid and Attendance Benefits vs. Housebound Benefits

Here is another important and surprising point: by rule, Veterans and their families cannot receive household benefits in addition to their aid and attendance. In other words, it is one or the other. Obviously, the next issue turns on acquiring the benefit that offers the highest monetary return.

Thus, choosing which benefit is better calls for weighing a hodgepodge of disability ratings and need.

Do This Before Veterans Need Aid and Attendance

Before I close, I want Veterans and their families to realize that planning for every life event is hard. As they say, hindsight is 20/20. If there is time, I think Veterans, their spouses and dependents should consider acquiring a power of attorney and healthcare directive as soon as possible.

I make this suggestion because it gives our loved ones power to act on our behalf when we need it the most. Even more significant, the generic form of these types of estate planning documents are free. Otherwise, part of my law practice includes drafting more personalized health care directives and related estate planning documents.

If you and your family need help, please contact me directly.
June 28, 2017
Prevent Cyberattacks on Estate Plans By Doing 1 Thing

Today’s news of a cyberattack on the banking system in Ukraine is a horrible reminder how vulnerable we really are.

On the other hand, none of my Clients leave my office without understanding whether they should store their estate planning documents in the cloud.

In my opinion, storing some or part of an estate plan in the Cloud can prevent problems down the road. Provided hardcopies are not compromised by changes or edits, nothing beats a cyberattack like having hardcopies

If you need help or advisement how to store, preserve and keep such things, please contact me for help.

June 27, 2017
Unemployment Penalties Can Bite Back
Unemployment penalties are getting out of hand in Minnesota. Even worse, unemployment laws in Minnesota are getting worse.

Applicants scratching their head as a result of a sanction or penalty assigned to their overpayment can consider appealing.

For those unfamiliar, let me explain. Under various statutes, including MN law 268.182, an unemployment law judge can attach a penalty to a claim, even if benefits were incorrectly paid. This includes administrative and criminal penalties.

Unemployment Penalties: Why There Are Problems

I believe there are four main reasons why penalties get assigned to an unemployment appeal:
- A poorly worded application for benefits,
- An applicant didn’t understand what they were trying to accomplish during their hearing,
- The folks denying unemployment claims don’t understand the issues, and
- Minnesota has a huge overpayment problem.
In my experience, these are the main reasons Applicants see unemployment penalties associated with their claim.

Appeal Unemployment Penalties

Yes, there are many factors that applicants can use when trying to decide whether they should appeal a period of ineligibility or monetary penalty. One of the first big issues of concern is timing.

Second is showing why an Applicant was right. I very much wish this type of conflict could be resolved by following a list of steps. But, every situation is different.

To be fair, I think every appeal should be reviewed with care. Here is why: every employee / worker encounters their own specific situation and facts. Minus a mass layoff, most employees do not share the same boss, employment policies or story how the job ended.

As a result, I think every person should have their personal situation checked out.

Evidence for an Unemployment Penalty

Evidence is a tricky thing because in my experience, problems arise because an Applicant is unprepared what to say and why they are saying it. In other words, verbal evidence can be critically important.

When time allows, other types of evidence includes:
- Documents (from a worker’s employment file) and
- Witnesses.
When one isn’t available or the employer is making life difficult, seeking a subpoena can be a strong response to what seems like a 900 pound gorilla.
June 19, 2017
Can my Ex Spouse Really Inherit my Stuff?
Can an ex spouse inherit property from their former spouse after a divorce? In Minnesota, absolutely yes.

Although there are laws like the Ex Souse as a Beneficiary Rule, I believe it is critical to update every estate plan after a divorce.

What is the Ex Spouse Beneficiary Rule?

Minnesota has two important laws that help revoke an ex spouse from a will and trust. The rules are:
- Minnesota Statute 524.2-804 and
- MN Stat 501C.1207.
On the other hand, I believe failing to update an estate plan puts intended beneficiaries (like children, siblings or a future spouse) at risk of not recovering your assets.

For one, there was a recent case reviewed by our US Supreme Court that says certain types of assets do not fall under the revocation laws referenced above. Keep in mind, this issue was reviewed by the highest court in the land.

Second, why take a chance?

Minnesota’s Laws on an Ex Souse Inheritance

I apologize for adding fuel to the fire, but Minnesota’s court system has produced two opposite opinions on this issue. Can you imagine an ex spouse taking an inheritance issue to court because they stand to inherit something substantial?

None the less, two cases come to mind:
- MONY Life Insurance v. Ericson, and
- Lincoln Benefit Life Co. v. Heitz.
Even if you never read these cases, please notice this: each case involves a financial institution. In other words, even if we think our ex-sposue will never encourage a problem with an inheritance, we cannot rule out our banks and insurance carriers.

In simple terms, making changes to update a will, trust, 401K, etc. is worth the effort to reduce conflict.

Will my Ex Spouse Inherit from my Will?

Right now, there is a strong law in Minnesota that revokes an ex spouse.

On the other hand, I am worried about bigger assets like retirement accounts, insurance policies and real estate.

If you need help with this issue, please contact me directly. Otherwise, I hope you found value in the links shared above.
June 14, 2017