IAJ Law, LLC

An Armor of Light

952-222-9462

Author: Jasper Berg, J.D.

  • This is my First Time Collecting Unemployment in Minnesota

    This is my First Time Collecting Unemployment in Minnesota

    Are you filing for unemployment for the first time in Minnesota?  Good!  Really, this is a process you do not want to encounter on a regular basis.

    On the other hand, do not be discouraged or frightened by the process for seeking benefits.

    Instead, look at it this way – you are doing the right thing by trying to education yourself.

    Thus, if you need help filing for unemployment for the first time in Minnesota, please consider contacting this law office for help.

    Step one when Filing for Unemployment for the First Time in Minnesota

    Look, this process can be complicated.  Sometimes, people end up appealing their claim for benefits after they file for the first time.  The very first step you should take is writing down and or taking notes of the process that led to your job ending.

    For example, if you remember having a conversation with your manager or recall being given a document to sign, you should write down what was said, who said it, and what you recall your response being.

    Thus, step one in filing for unemployment for the first time in Minnesota should be writing down notes on what you recall being told or what you recall being said that led to your job ending.

    Step two in Filing for Unemployment for the First Time in Minnesota

    Your second step should be requesting from your employer, in writing, the reason for your discharge and a copy of your entire employment file.  You have the right to review your employment file under Minnesota rule 181.961.

    You have the right to get the reasoning behind your job ending under Minnesota rule 181.933.  Please note, your letter needs to be sent by mail.  In other words, it cannot be by fax or e-mail.

    But wait – you know why your job ended?  It doesn’t matter whether you know the exact reason or not – you need to find out whether your former employer agrees with your understanding and or if your former employer will change their story.

    Because your right to receive specific information referenced above about the reason for your discharge is time sensitive, take this step very seriously.

    What if you cannot wait and need to being filing for unemployment right this minute?

    Well, if you cannot wait – then this law office encourages you to contact a lawyer and ask them to review your situation.  Even better, share your story and ask for help in filling out the application for unemployment benefits.

    In case it isn’t obvious, what you write down in your application when seeking and filing for unemployment for the first time in Minnesota could have a significant impact on whether you get benefits.

    Thus, you desperately need to take the application process seriously and not fill it out the second you walk away from your last job.

    What should you put in your application when filing for unemployment in MN?

    Yes, what you write and how you answer questions specific to your initial application really does matter.  What you write depends on the law, not what you think the law is.

    Thus, consider having your case reviewed by  lawyer BEFORE filling out your application.

  • Root Canals and My Unemployment Audit Minnesota

    Root Canals and My Unemployment Audit Minnesota

    Yes, an Unemployment Audit Minnesota is authorized under Minnesota Statute 268.168.  If you are a worker or employer, please contact this law office for help.

    Biggest risk for an Unemployment Audit Minnesota?

    The biggest risk associated with an Unemployment Audit Minnesota is the fact an audit can lead to severe monetary penalties and or initiate an audit from another government agency.

    Yes, calling this law office for help is a lot easier than trying to make a self-assessment.  None the less, consider the following issues.

    Who can initiate an Unemployment Audit Minnesota?

    An Unemployment Audit Minnesota is generally initiated through the Minnesota Department of Employment and Economic Development (“DEED”).  For all practical purposes, DEED has the power to perform an Unemployment Audit Minnesota at any time.

    Unfortunately, an Unemployment Audit Minnesota can inspire other issues through the Minnesota Department of Revenue, the Minnesota Department of Labor, and related agencies.

    For this one reason, this law office encourages applicants and employers to respond to an Unemployment Audit Minnesota with a high level of care.

    What happens during an Unemployment Audit Minnesota?

    The Commissioner for DEED has the power to audit, examine, or cause to be supplied or copied, any books, paychecks, bank accounts, account transfers, correspondence, papers, records, or memorandum that are relevant to unemployment claims in Minnesota.

    Whether the books, correspondence, papers, records, or memorandum are the property of or in the possession of the employer, any person associated with the employer can be audited, including current and past employees or vendors.

    What if you refuse an Unemployment Audit Minnesota?

    An Employer who refuses to comply with an Unemployment Audit risks being penalized or fined.  None the less, employers in Minnesota have rights.

    An Applicant who refuses to comply with an Unemployment Audit risks an overpayment or worse penalties.

    To avoid feeling uneasy or that sinking feeling, consider contacting this law office for a consultation.

    Why do people and businesses get an Unemployment Audit Minnesota?

    Normally, an Unemployment Audit starts with a complaint or an applicant seeking benefits.  However, this is not necessarily true given Minnesota’s history with incorrectly paying unemployment claims.

    In the year 2014, the State of Minnesota incorrectly paid out more than thirty-five million dollars ($35,000,000) in unemployment benefits.

    Unemployment benefits are subsidized under three sources of revenue: (1) employer premiums, (2) taxes, (3) Federal bills.  Because applicants and employers are part of this equation, the Minnesota unemployment office turn others to reduce the debt.

    Impact or Outcome of an Unemployment Audit Minnesota:

    An Unemployment Audit Minnesota can have a significant impact both financially and from a production and service standpoint.  Also, claims can begin small and turn into bigger issues of concern.

    For example, an Unemployment Audit Minnesota can inspire other issues through the Minnesota Department of Revenue, the Minnesota Department of Labor, and related agencies.  For this one reason, respond to an audit  with a higher level of care.

    Also, penalties and fines may be assessed too.

    Lawyer for Unemployment Audit Minnesota:

    If you are looking for a Lawyer to represent your business during an Unemployment Audit Minnesota, please contact this law office by clicking HERE.

  • My First Move After Getting Fired

    My First Move After Getting Fired

    What to do after getting fired or laid off?  First, you are not alone.  Second, whether you are injured, laid off, an executive, hourly worker, or terminated for employment misconduct, every worker and former employee should consider the same path when taking the next step.

    Thus, consider this a game plan if you are asking what to do after getting fired or terminated from your job.

    First Step: what to do after getting fired

    The first thing to do after getting fired is request a copy of their personnel file.

    Provided a person follows the guidelines under Minnesota statute 181.961, there shouldn’t be many complications.

    What is your personnel file?

    Your personnel file is any document connected to you and your job.  This includes applications, resume submissions, wage versification, W-2 forms, benefit information, correction plans, retirement benefits, non-compete agreements, etc.

    What should a request for your employment file look like?

    A request for your employment file should be in writing.  No, this does mean you can e-mail your request.  According to the rule, the request must be in writing.

    Next, a worker or employee recently fired or terminated should ask for:

    (1) All wages, bonuses, prizes, awards, and commissions owed,

    (2) A complete copy of your personnel file,

    (3) The truthful reason your job ended,

    (4) The return of all personal property,

    (5) Copies of any specific document or book relevant to your discharge, and

    (6) Ask your former employer to forward this information to an address you find appropriate.

    Wait, I know why my job ended

    Minnesota Veterans Training Program

    Yes, a worker might know the reason why they were fired or terminated.  None the less, it is important to ask again and in writing because your right to information about an involuntary termination may end within 15 working days from the date your job ended.    

    Also, obtaining written documentation from your former employer may help you with an appeal for unemployment benefits.

    For more information on the notice of termination requirements, consider reviewing Minnesota statute 181.933.

    Second Step: what to do after getting fired

    Before starting on the second step, make sure you review what to do after getting fired above.

    None the less, the second thing to do after getting fired is to write down any details you recall specific to your job ending.  For example, outlining conversations with co-workers, bosses, human resources or describing a sequence of events.

    Third Step: what to do after getting fired

    The third thing to do after getting fired is to consider whether you are going to apply for unemployment benefits.  Prevent yourself from filing for unemployment on the day or week you were fired.

    Yes, you need time to reduce emotion and negative sentiment.  As you can guess, this is normal.  Also, you want time to think through the sequence of events that led to your termination and make sure you are prepared to questions that will help you get unemployment versus prevent you from getting unemployment.

    Fourth Step: what to do after getting fired

    The fourth thing to do after getting fired is to consider whether you need to take necessary steps to file a claim or claims with the Department of Labor, EEOC, Minnesota Department of Human Services, Minnesota Department of Labor, Minnesota Department of Human Rights, or a related agency.

    Need more help?

    If you need more help, consider contacting this law office for advisement.  I wish you the very best.

  • Can I Delay Their Funeral with a Funeral Directive

    Can I Delay Their Funeral with a Funeral Directive

    A funeral directive is much like a health care directive or power of attorney. It is a way to identify the quarterback who can handle our affairs specific to a funeral.

    Luckily, you can reduce arguments and stress by creating a funeral directive, and address the promises you have for the final chapter before your trust kicks in.

    Estate Planning Attorney

    Estate Planning

    Contact Now

    What is a funeral directive?

    A funeral directive is a document that outlines your wishes and desires for a funeral and final honors.  The document is created before you die or before you are not able to communicate for yourself.

    The goal of a funeral directive is to make decisions about your funeral arrangements and remove the likelihood of your loved ones making decisions that rock the boat or upset others.

    What types of issues are decided by a funeral directive?

    A funeral directive can make decisions on any issue you find important including:

    • Do you want to be cremated or buried?
    • ** If you are cremated, can your family wait for a month or longer to hold a service in your honor?
    • Where do you want your ashes or body placed when you die?
    • Do you want an honor guard to perform at your funeral?
    • Will your funeral service call for a specific religious affiliation?
    • What do you want your tombstone to say?
    • What picture do you want used in an obituary?

    Can your funeral directive be included in your Will?

    This law office prefers a funeral directive that is separate from all other estate planning tools, like your health care directive or will.

    In the past, I have seen families print a funeral directive and distribute it as they divide up work in preparation of a funeral.  For example, granddaughter can use the document as she talks to a Church to select music while nephew can use the document as he purchases flowers online.

    As you might suspect, a will or health care directive is likely more personal.  A funeral directive is not as personal because the idea is to make specific plans for an end of life celebration versus the distribution of assets or property.

    Yes, but why do you care about delaying your funeral?

    Believe it or not, spouses and children can be torn on whether it is “right” to delay a funeral with the idea of accommodating travel schedules.  Yes, you have the power to put your family at ease.

    Nobody really knows the date of their demise.  For all we know, you are going to pass days before a major holiday.  In today’s world, more and more families are delaying a funeral so people can make arrangements for travel, take time off from work, school, etc.

    Luckily, hard feelings can be laid to rest by granting your family the ability to delay your end of life party by implementing a funeral directive.

  • Which State do I file for Unemployment Benefits?

    Which State do I file for Unemployment Benefits?

    Hey, which state do I file for unemployment benefits?  I hear this question a lot and yes, it matters because you want two things:

    (1) The most money or benefits possible, and

    (2) Prevent from getting your application denied.

    Yes, but what state do I file for unemployment benefits?

    This law office encourages applicant to review the dollar amounts for unemployment benefits in the state they live and the state they work.  To help, here are some numbers to consider.  However, if you cannot find the State you live or work, you can find additional numbers in a report provided by the Department of Labor.

    Minnesota

    Minimum Weekly Minimum: $ 25

    Maximum Weekly Maximum: $ 640

    Maximum Entitlement: $ 16,640

    Wisconsin

    Minimum Weekly Minimum: $ 54

    Maximum Weekly Maximum: $ 370

    Maximum Entitlement: $ 9,620

    Iowa

    Minimum Weekly Minimum: $ 62

    Maximum Weekly Maximum: $ 511

    Maximum Entitlement: $ 13,286

    South Dakota

    Minimum Weekly Minimum: $ 28

    Maximum Weekly Maximum: $ 352

    Maximum Entitlement: $ 9,152

    North Dakota

    Minimum Weekly Minimum: $ 43

    Maximum Weekly Maximum: $ 594

    Maximum Entitlement: $ 15,444

    Do not ask your unemployment office for help

    Do everything in your power to prevent yourself from asking the unemployment office which State do I apply for unemployment.  For one, the staff answering phones at the unemployment office are not paying attention to other States.

    In fact, it is the experience of this law office that many phone associates will send you to a different State for no reason other than it makes their job easier.

    If you are forced to ask a representative at the unemployment office, be prepared to ask questions about “reciprocity“.

    Why different offices give bad information

    It is the opinion of this law office that an unemployment phone associate is helping their agency reduce overpayments, which is a huge problem impacting many of the unemployment agencies across the country.

    Most important rule for picking state to apply for unemployment

    Generally, as soon as a person files or applies for unemployment benefits inanyState other than Minnesota, that person is automatically ineligible for benefits in Minnesota.  For verification of this rule, please see Minnesota Statute 268.085.  Of course, there are exceptions to this rule and each situation will be different.

    Also, people applying for benefits and asking themselves which state do I file for unemployment benefits need to know about Minnesota Statute 268.131.

    If you need help deciding “which State do I file for unemployment benefits”…

    If you are trying to collect the highest amount possible and prevent an appeal to your claim for unemployment, contact an unemployment lawyer for help.

  • I Never Want to Go Without A Health Care Directive in Minnesota

    I Never Want to Go Without A Health Care Directive in Minnesota

    A health care directive in Minnesota is a written document that informs others of your health care wishes. It allows you to name a person (or “agent”) to make decisions for you if you are unable to do so. Under Minnesota law, anyone 18 or older can make a health care directive.

    Why might I need a health care directive in Minnesota?

    A health care directive is useful if you become unable to adequately communicate your health care wishes. The directive guides your physician, family and friends regarding your care at a time when you are not able to provide that information.

    While you do not have to create a health care directive (you will still receive medical care without one), a directive will help you get exactly the care you would like, particularly near the end of your life when your interests may not be the same as those who survive you.

    How do I prepare a health care directive in Minnesota?

    There are forms that you can use to draft a health care directive. The Sample Forms section includes a sample health care directive for your use on pages 31-36. You can also create your own directive or have an attorney prepare one for you, but your directive must:

    • Be in writing and dated;
    • Contain your name;
    • Be signed by you (or someone you authorize to sign for you) when you can still understand and communicate your health care wishes;
    • Have your signature verified by a notary public or two witnesses; and
    • Include the appointment of an agent to make health care decisions for you and/ or instructions about the health care choices you wish to make.

    Before preparing your directive, you may wish to speak with your physician or other health care provider.

    What should I include in my health care directive in Minnesota?

    Your health care directive may contain many health-related items, including:

    • The name of the person you designate as your agent to make health care decisions for you. You can name alternate agents in case the first agent is unavailable, or even assign joint agents;
    • Directions to joint agents, if assigned, regarding the process or standards by which they are to reach a health care decision;
    • Your goals, values and preferences about health care;
    • The types of medical treatment you want or do not want, including instructions about artificial nutrition and hydration; • How you want your agent(s) to make decisions;
    • Where you want to receive care;
    • Your preferences regarding mental health treatments, including those that are intrusive, use electroshock therapy or require neuroleptic medications;
    • Instructions if you are pregnant;
    • Your desire to donate organs, tissues or other body parts; and
    • Your funeral arrangements. You may be as specific or general as you wish in your health care directive.

    What are the limits on my health care directive in Minnesota?

    Your health care directive is limited as follows:

    • Your agent must be at least 18 years of age;
    • Your agent cannot be your health care provider, unless the health care provider is a family member or you give reasons why your agent is your health care provider;
    • You cannot request health care treatment that is beyond reasonable medical practice; and
    • You cannot request assisted suicide.

    Your health care provider must follow your health care directive or your agent’s instructions, as long as your health care requests fall within reasonable medical practice. However, you or your agent cannot request treatment that will be of no help to you, or that cannot practically or ethically be given by your provider.

    If your provider cannot follow your agent’s directions about life-sustaining treatment, your provider must inform the agent.

    The provider must also document such a notice in your medical record. The provider must allow the agent to arrange to transfer you to another provider who can and will follow the agent’s directions.

    How do I change my health care directive in Minnesota?

    Your health care directive lasts until you change or cancel it. If you wish to cancel it, you may do one of the following:

    • Write a statement saying you want to cancel it;
    • Destroy it;
    • Tell at least two people that you wish to cancel it; and/or
    • Write a new health care directive.
  • Is Your Minnesota Corrective Action Plan BS?

    Is Your Minnesota Corrective Action Plan BS?

    Is there such a thing as a Minnesota Corrective Action Plan or are there laws that you should be concerned with?  No and yes.  Unfortunately, it depends on your job and the size of your employer.

    Thus, this law office encourages you to use the following as a guideline and or introduction to this thing called a Minnesota Corrective Action Plan.

    What is a Minnesota Corrective Action Plan?

    First, there really isn’t a black or white definition.  Generally, corrective action plans in Minnesota are documents used by employers to communicate certain expectations to a worker or an employee.

    Minnesota is applied to this term not because there is a rule or statute specific to corrective action plans, but instead given the fact this law office serves people who work for Minnesota corporations and businesses.

    It is the experience of this law office that many corrective action plans are ambiguous or unclear.  Might this be the case for you?  When your Minnesota corrective action plan is unclear, ambiguous, or broad – you should panic.  No, don’t panic – this was a horrible attempt at a joke.  That said, certainly it is problematic when you yourself do not know how to meet and or exceed the expectations outlined in your corrective action plan.  For this reason, it is critical you seek clarification, ask questions, and document (write down in a notebook or print out communications via e-mail) that help you piece together the plan your employer is proposing.

    Can a corrective action plan be called something different?

    Yes, often employers will refer to corrective action plans or a Minnesota corrective action plan like that discussed in this article as a CAP, Personal Improvement Plan, or PIP.

    Really, the punch line is whether or not there is a document that identifies expectations your employer is asking that you change while making reference to outcomes if you do not meet their expressed policies.

    Why should you document your corrective action plan in Minnesota?

    Look, your employer is documenting things and you should too.  Take notes of every communications between you and your boss, director, manager, hr representative, etc.  Some people verify, print, and keep e-mail.  Others should consider writing communications down in a notebook.

    Again, follow this practice so you have records and to show why and how you tried desperately to adhere to your employer’s expectations.

    Also, document your communications specific to your Minnesota Corrective Action Plan because you never know when it might help you in a future conflict, whether on the date of your discharge, the date you seek unemployment, or if you are ever compelled to pursue a cause of action against your now former employer.

    But wait, you don’t have a job that requires you to use a computer

    For the jobs and careers that do not include or require computer use – you can still document your Minnesota corrective action plan by taking notes at the conclusion of your work day.

    I read this article after I had been fired and didn’t document anything

    Ok, so you are just now coming across this article.  Do not beat yourself up or despair.  Yes, you have legal rights that allow you the opportunity to seek a copy of any correction action plan given to you by your employer.

    Under Minnesota rule 181.961, you have the right to review your personnel record and or get a copy of it.  Very likely, your employment file will include a copy of your Minnesota corrective action plan.

    If you are given a corrective action plan and work in Minnesota, when should you contact a lawyer?

    It is the opinion of this law office that as soon as you are given a corrective action plan or asked to review a corrective action plan, you should consider seeking help form a lawyer to help manage or advise you on the rights you have.

    Like that referenced above, every Minnesota corrective action plan is different and depends on your job and the size of your employer.

    Can a corrective action plan impact your unemployment benefits?

    Yes, a corrective action plan in Minnesota can impact your unemployment benefits.  For this very reason, never submit your corrective action plan to any person, party, or government agency without first having it reviewed by a lawyer.

    With exceptions and assuming the worker is still employed, a worker placed on a plan is likely ineligible for unemployment benefits in Minnesota.  This is true because a worker placed on a corrective action plan normally continues working.  In Minnesota, a worker who quits their job after being placed on a corrective action plan must meet one of ten exceptions before becoming eligible for unemployment.  More significantly, whether or not the worker placed on a corrective action plan is terminated will have bigger impact on the issue regarding unemployment benefits.

    Again, deciding to submit it along with your application for unemployment benefits or a separate government agency inquiring about your corrective action plan (like the Department of Human Services, Department of Labor, etc.) can have a significant impact on your rights going forward.

    What should you do going forward?

    You really have three choices: (1) do nothing, (2) drive yourself crazy, and or (3) call a professional who works with Minnesota corrective action plans on a regular basis.

    Therefore, if decide you want to seek help from a professional, please consider contacting this law office for help.

  • Sorry, another post about Unemployment Appeals in Minnesota

    Sorry, another post about Unemployment Appeals in Minnesota

    The process for an unemployment appeal Minnesota depends on where you are in the process.   This law office defines the process for an unemployment appeal Minnesota in four parts or levels.  Each level is different and is described below.

    On the other hand, if you do not know where you are in this process described below, please consider seeking help immediately due to time restrictions imposed by Minnesota law.

    Unemployment Appeal Minnesota – Level I:  Phone Appeal

    Generally, a Level I appeal is conducted by phone.

    Even though this type of appeal is conducted by phone, do not let this fool you.  The Level I Phone Appeal is the most critical level because it impacts every level going forward.  Also, if you do not raise a particular issue, Minnesota law supports the defense that your issue can never be raised again. Although there are legal reasons why this should not be true, this issue needs to be handled with caution.

    Unemployment Appeal Minnesota – Level II:  Request for Reconsideration

    The second type of an Unemployment Appeal Minnesota is a process called a Request for Reconsideration.  This law office refers to this type of an appeal as a Level II appeal.

    This type of appeal is only allowed at the conclusion of a Level I appeal.  Also, this process is generally available to the party who lost the Level I Phone Appeal.  A Level II appeal is important because it is your last chance to reverse or file an unemployment appeal Minnesota before being required to seek a Level III appeal.

    Because the next type of appeal can take a long time from start to finish, a Level II Request for Reconsideration can be an effective way to reverse your case, provided you meet the deadline imposed by Statute.

    Unemployment Appeal Minnesota – Level III:  Minnesota Court of Appeals

    The third type of Unemployment Appeal Minnesota is an appeal to the Minnesota Court of Appeals.  This type of appeal is not as expensive as you might think.  Instead, it is the time that it takes for this element of the process to finish Clients find most surprising.

    Generally, you should consider an attorney for a Level III appeal.  First, an Employer or business is required to be represented by an attorney when heard by this Court.  On the other hand, an  Applicant can represent themselves Pro Se.  However, if your arguments didn’t work in the past, consider having your case reviewed by a professional who has experience with unemployment issues before engaging in this element of the Unemployment Appeal Minnesota process.

    Unemployment Appeal Minnesota – Level IV:  Minnesota Supreme Court

    The fourth type of Unemployment Appeal Minnesota is an appeal to the Minnesota Supreme Court.  Generally, very few cases make it to this level.  Because this law office has sought relief for unemployment claims to the Minnesota Supreme Court, this level should be viewed with care.

    Generally, unemployment cases are rarely heard by the Minnesota Supreme Court because there is a court fee.  Unlike Level III, an attorney is required when seeking an Unemployment Appeal Minnesota before the Minnesota Supreme Court.

    Concluding Points about an Unemployment Appeal Minnesota

    Regardless which level you are involved with, the rules that govern an unemployment appeal in Minnesota fall under Minnesota Chapter 268.  Once the Department of Employment and Economic Development (“DEED”) collects answers to an on-line questionnaire filled out by an Applicant and an Employer, DEED will make a determination of whether or not the Applicant is eligible for unemployment benefits.  Upon receiving notice of this determination, the losing party can being the appeal process.

    Appeals for unemployment benefits in Minnesota are reviewed by unemployment law judges.  Because unemployment law judges have the same powers as other Minnesota Judges, the process for an unemployment appeal should be approached with caution.  This is because the Minnesota rules of evidence, Minnesota rules of general practice, and the Minnesota rules of civil procedure apply to an appeal for unemployment.

    In Minnesota, filing an unemployment appeal is different for each Level described above.  For this reason, an appeal for unemployment benefits should be viewed with care and fortitude.

    Where to go for help with an Unemployment Appeal Minnesota?

    If you need help with any level or related process described above, please contact this law office for help.

  • Why Unemployment Seasonal Employees Have it Worse

    Why Unemployment Seasonal Employees Have it Worse

    Recently, Minnesota rendered a decision about unemployment seasonal employees.  In a case called McNeilly v. Dept. of Employment, 778 N.W. 2d 707, a Seasonal Employee was laid off for lack of work and deemed ineligible for unemployment benefits.

    Although this case was decided in favor of the employer, it is important to note that the worker wasn’t actively seeking work while unemployed due to their seasonal job.

    Thus, this article addresses some dos and don’ts specific to seasonal employees in Minnesota who are seeking unemployment benefits.

    How should a seasonal employee approach unemployment in Minnesota?

    Unemployment seasonal employees in Minnesota should always approach a lay-off with caution.  Why?  Because many unemployed persons never foresee being unemployed.  For this reason, seeking unemployment benefits is never a guarantee, making your application for benefits critical if not vital.

    Laid-off from seasonal work – what should you do to receive unemployment?

    First, always remain calm and never fill out your application for unemployment benefits without talking to a professional who has done this in the past and or having a plan when answering questions for benefits.  If you were laid off for lack of work, do not create a bigger conflict by giving more information than is necessary.  In other words, your application for benefits should not be used as a sounding board to complain about your former employer.

    Next, ask if there is anything you can do to remain employed.  If you are offered a different position, accept the job offer unless your rate of pay is reduced by more than 75%.

    Can a seasonal worker resign and get unemployment in Minnesota?

    If you are not offered a different position, do not offer a resignation even if pressured by your employer.  A person who resigns from a seasonal job must satisfy many many rules, including the rules under Minnesota statute 268.095, in order to become eligible for unemployment benefits in Minnesota.

    For this reason, a seasonal worker should never resign without first speaking with a lawyer.

    Seasonal worker receives a separation package from their employer – now what?

    If presented with a separation agreement or asked to take a “lump sum” or “severance package”, always have this document reviewed by an attorney before you sign it or accept it.  Yes, the unemployment office in Minnesota will find out and they will look at the signed document.

    Yes, documents of this nature can impact your unemployment benefits.  Thus, issues with separation packages and unemployment fr seasonal employees when working in Minnesota should always be scrutinized.

    Unemployment seasonal employees beware!

    The moral of the story is to proceed with caution when laid off for lack of work or due to the seasonal elements of your job.  Therefore, contact an attorney to review your rights.

  • Unemployment Revenue Recapture for Minnesota – Say What?

    Unemployment Revenue Recapture for Minnesota – Say What?

    Unemployment revenue recapture for Minnesota is a somewhat of a new process.  Generally, you will receive notice by mail that the unemployment office in Minnesota is using help from the Department of Revenue to collect an unemployment overpayment.

    In other words, the unemployment office is trying to use your tax return to collect money from you that they believe you owe as a result of an unemployment overpayment.

    Unemployment Lawyer

    Unemployment Help

    Contact Now

    Can you appeal an Unemployment Revenue Recapture for Minnesota?

    Yes, you can appeal an unemployment revenue recapture for Minnesota by following the appeal rules and procedures that are usually outlined in the notice you received by mail.

    Should you file an appeal for an unemployment recapture or talk to a lawyer first?

    Obviously this law office is biased, but yes you should talk with a lawyer regarding an unemployment revenue recapture issue.

    An unemployment revenue recapture hearing should be reviewed with extreme caution.  The procedure for an appeal of this nature is similar to other unemployment appeal hearings you may or may not have partaken in.  

    That said, an unemployment law judge may utilize an unemployment revenue recapture hearing to justify an audit of your benefits or attach fraud to your claim. 

    Thus, an unemployment revenue recapture hearing should never be treated lightly.

    What else should you know about an unemployment revenue recapture for Minnesota?

    The intent of the revenue recapture hearing is to see whether your case should not be forwarded onto the Minnesota Department of Revenue. 

    If the applicant believes that their claim for unemployment benefits should not be forwarded onto the Minnesota Department of Revenue, consider appealing the notice of revenue recapture.

    What if you don’t appeal an unemployment revenue recapture for Minnesota?

    If you do not appeal, then the unemployment office in Minnesota will move forward with the process to intercept your tax return and use it to to repay an unemployment overpayment.

    What if you are not expecting a tax return?

    Even if you are not expecting a tax return, you should still consider an appeal.  The Minnesota Department of Revenue can use this process to attach a lien to your home, your car, or a bank account.

    What should you do first?

    Look, this law office knows this can be a scary or an overwhelming process.  Do not panic because you absolutely have rights.  Although every situation is different, consider contacting a lawyer for help.  

    As an alternative, consider visiting a law library and conduct further research on the process specific to an unemployment revenue recapture for Minnesota.

  • Minnesota Unemployment Laws

    Minnesota Unemployment Laws

    Minnesota Unemployment laws are everywhere and they don’t seem to end. Of course, there are statutes. There are case laws. There are rules, guidelines, and everything in-between. What you can’t find within the law is firsthand experience.

    If you are looking for the perfect rule or the exact law for your situation, consider starting with the facts. Then, start issue spotting.

    Unemployment Lawyer

    Unemployment Help

    Contact Now

    Where Can You Find UI Rules?

    Minnesota unemployment laws are provided under Minnesota Chapter 268 and Minnesota Rules 3300-4370.  Even more importantly, these statutes and rules are re-defined through a process called a legal precedent.

    Again, experience matters. Turning to your neighbor, co-worker, friend, or spouse is not.

    Court Cases with Minnesota Laws

    A legal precedent means a Court of Law reviewed or applied a rule based on a specific fact pattern.  In theory, when a specific fact pattern is duplicated, a legal precedent suggests that a decision should be decided like it has in the past.  Thus, Minnesota unemployment rules are re-defined through a legal precedent.

    Regardless whether you are an Applicant or an Employer, these rules have an impact on Minnesota unemployment and the process as a whole.

    Which Courts Review Unemployment Cases?

    Generally, any court having jurisdiction can review a case and apply the law. This includes the Minnesota Court of Appeals and the Minnesota Supreme Court. On the other hand, most District Courts and Administrative Courts (like worker compensation) do not have jurisdiction. Instead, we turn to the administrative process managed by DEED.

    Because unemployment claims are reviewed by an Unemployment Law Judge, Minnesota’ s District Courts rarely reviews claims for eligibility.

    Are Minnesota Unemployment Laws Complicated?

    Yes, Minnesota unemployment laws are complicated because rules cross apply from three areas:  Minnesota Chapter 268, Minnesota Rules 3300-4370, and through a standard reviewed referred earlier as legal precedent.

    Do Unemployment Laws Change?

    Yes, Minnesota unemployment laws change all the time, which is why not every case law is applicable. For example, about ten years ago, there was a fancy unemployment rule called the “Hot Head Doctrine”. Basically, it was a rule that applied in moments of anger. Well, that rule has changed drastically over the years. Some good and some bad.

    Now, add laws from the Covid Pandemic and or the financial crisis of 2007, and what you will find is that the rules and statutes governing unemployment claims is more different today than ever before.

    How Often are Mistakes Made with Minnesota Unemployment Laws?

    It is the experience of this law office that mistakes happen all the time. Unfortunatley, most applicants are unaware of the mistake until they are awarded bad news.

    Generally, mistakes are made upon advise given by workforce centers, friends who claim they have been through the “system” and mistakes are made at all levels of the unemployment appeal process.

    Because mistakes are made on a regular occurrence, Applicants and Employers seek unemployment appeals.

    Questions about Minnesota Unemployment Laws

    First, stop comparing Minnesota rules to other states. Our appeal system is very different than our border states. Second, stop listening to lay people. Family members are great for support versus legal advice.

  • Can you get Unemployment and Workers Compensation?

    Can you get Unemployment and Workers Compensation?

    In Minnesota, an applicant may be eligible to collect unemployment benefits and workers compensation benefits at the same time, but that doesn’t mean you should.

    If you find yourself in a situation where you believe you are eligible for both unemployment and workers compensation benefits, please consider seeking immediate help such that you can prevent being nailed for unemployment fraud.

    What makes collecting unemployment and workers compensation so complicated?

    There are a variety of issues that an applicant needs to be aware of.  First, work comp cases in Minnesota always take longer than you anticipate.  Whether you are waiting for your injury to heal or you are waiting for the work comp insurance company to issue you a check for lost wages and or an injury, any money you receive will impact your unemployment check.

    Second, Minnesota unemployment law presumes you are able to work.  If you are not able to work due to your injury, then you are likely ineligible for unemployment benefits under rule 268.085.

    On the other hand, if you are able to work with restrictions, you more likely to be eligible for unemployment benefits.  However, this to can be a problem because a hurt worker’s transition back to their job or a different job will impact their rights from a work comp perspective.

    Third and even more significantly, a person eligible for unemployment benefits in Minnesota is presumed to have been discharged for reasons other than employment misconduct or quitting for a good reason caused by their employer.  Compare these presumptions to work comp rules in Minnesota, which attempts to compensate you while you recover from your injuries such that you can return to your old or past job as soon as possible.  Thus, work comp rules and unemployment claims in Minnesota contradict one another.

    Thus, collecting work comp and unemployment benefits is a complicated.

    What are the unemployment and workers compensation laws for Minnesota?

    The rule in Minnesota says if a worker’s loss of wage benefits are higher than their weekly unemployment benefit amount, then the worker trying to collect unemployment benefits in Minnesota is not eligible for unemployment benefits.

    On the other hand, if a worker’s loss of wages specific to their workers compensation benefit was less than their weekly unemployment benefit amount, then the person trying to collect unemployment benefits in Minnesota would likely be eligible for unemployment benefits if trying to collect both benefits simultaneously.

    What to expect when collecting unemployment and work comp benefits:

    If you are requesting unemployment benefits and work comp in Minnesota, you will likely be required to seek medical opinions to support your claims.  That said, doctors routinely overstate and render opinions that hurt or damage an applicant’s claim for benefits.

    However, you can help yourself and your claim by seeking a lawyer to review the doctor’s medical opinion prior to it being submitted to DEED or the Minnesota Department of Labor and Industry.  I recognize this appears to be a self serving statement.  Look, the doctor’s number one interest is your health.  Your lawyer’s number one interest is seeking a monetary benefit on your behalf.  These goals are not the same, which is why you need both professionals in your corner.

    What is the worst that could happen if I apply and get denied unemployment and workers compensation benefits?

    A mistake or miss classification might result in a fraudulent overpayment of unemployment benefits.  Also, a mistake regarding your rights to seek or appeal for work comp benefits can be jeopardized.

    Remember, the intent of these benefits is to supplement your income for job loss and to help you recover from your injuries.  Both of these benefits can have huge financial impacts.  Thus, know the rules and apply them to your advantage.

  • Unemployment Rights in Minnesota?

    Unemployment Rights in Minnesota?

    What are your unemployment rights in Minnesota?  This is a popular question asked by those seeking help with their application for benefits or a denied claim.  Thus, from the very beginning, meaning starting with your initial application and your weekly request thereafter, pretend you will be denied and take nothing for granted.

    That said, you certainly have rights, which include but are certainly NOT limited to only the rights talked about below.

    Instead, the intent of this article is to explore Minnesota law 268.192 which is titled “protection of rights” versus talking about the countless rules applicable to a typical unemployment claim.

    Waive Unemployment Benefits

    First, Minnesota law states a worker cannot “waive” or “release” a claim for benefits.  This means any agreement you sign that suggests you are waiving your right to unemployment benefits is an unenforceable agreement.  BUT WAIT, THIS DOESN’T MEAN YOU SHOULDN’T BE VERY CAUTIOUS!

    If you are asked to sign a contract or employment agreement, please go out of your way and have it reviewed by a lawyer.  Although it is true you cannot waive your right to unemployment in Minnesota, certainly agreeing that a specific event occurred or took place can harm if not prevent you from collecting unemployment.

    Thus, the moral of the story is be very careful what you are signing.  Just because you cannot technically waive your right to unemployment benefits, does not mean you cannot harm your ability to collect benefits by signing something you shouldn’t.  On the other hand, if you already signed something, take a deep breath and contact a lawyer such that your specific situation can be reviewed.

    Employer Agrees they will Not Contest Unemployment

    Second, your unemployment rights in Minnesota, under rule 268.192, state an employer cannot bargain with you or give you something in exchange of not contesting your claim for benefits.

    This right is complicated, but it can be summarized as follows.  An agreement between you and your employer which says something like “if you quit, we will not contest your unemployment” or “if you withdraw your appeal, we will say you should get unemployment” doesn’t fly in Minnesota.  In other words, if your employer says they will not contest your right to unemployment benefits, doing so will have no impact on whether you do or do not collect unemployment.

    Do you have MN Unemployment Rights?

    Yes, you have rights when you are seeking benefits in Minnesota but you do not have an exclusive right to unemployment just because your employer says you will get benefits once you apply.  The only party or entity that can tell you whole heartily that you will receive unemployment benefits is the Unemployment Office.

    Sometimes this occurs immediately after filing for benefits and sometimes a person needs to appeal their rights.  None the less, never believe your employer if they suggest your right to unemployment will be guaranteed upon ending your employment and never sign a piece of paper that suggests this.

    Therefore, if you are trying to determine what rights you have as you appeal or apply for unemployment benefits in Minnesota, please consider contacting an unemployment lawyer for help.

  • Independent Contractors and Unemployment in Minnesota

    Independent Contractors and Unemployment in Minnesota

    In Minnesota, two terms do not go together:  independent contractor and unemployment in Minnesota. In most cases, this spells ineligibility.

    That being said, the meaning or definition of an independent contractor is certainly not black or white.  

    As a result, there are a lot of people appealing their benefits that need help.

    Unemployment Lawyer

    Unemployment Help

    Contact Now

    Where to begin?

    First, the term “independent contractor” is a term used by the IRS.  The IRS cares most about whether or not workers are classified as independent contractors.  

    Quite frankly, employers have more to lose than workers when trying to figure out whether a worker fits the IRS definition of an “independent contractor” or an “employee.”  

    For this one reason, applicants requesting benefits might be required to defend themselves in an appeal for benefits.

    Why does the IRS care so much about your job classification?  The IRS cares about the definition used by your former or current “employer” because the IRS wants to assess tax liability to the right party.  

    Thus, IRS cares and the Minnesota unemployment office care too.

    A Simple Unemployment Law applicable to all Independent Contractors in MN

    Second, lets reference a very simple unemployment law applicable to independent contractors in Minnesota.  The law in Minnesota says a person seeking unemployment benefits is automatically ineligible if they are an independent contractor.  Because this is true, there really isn’t any point in claiming or filing for benefits.

    On the other hand, just because a document or a person classified you as an independent contractor doesn’t mean you are automatically ineligible for unemployment.  If this is your situation, then for heaven’s sake, start helping your cause to make sure you are properly classified.  

    But wait, you still don’t know if you are an Independent Contractor or an Employee

    It is the experience of this law office that people claiming unemployment benefits do not find out they are ineligible until their former employer identified them as an independent contractor.

    Often, this law office hears the following:

    • “I was pushed into the role of being a contractor”
    • “They just told me I had to be an independent contractor”
    • “Even though they said I was an independent contractor, they still treated me like an employee”
    • “I never filed any documents with the IRS”
    • “Sometimes I was independent and sometimes I was an employee”
    • “This is the first I have ever heard of this”
    • “My employer is trying to get away with something, but I don’t know what”
    • “I’m a what?”

    Again, these are all very common responses to people, workers, and applicants appealing for unemployment benefits in Minnesota.  

    Thus, do not feel like you are alone or taking on an untamed beast that has never been defeated.  Instead, these types of appeals happen all the time.

    Minnesota Statutes for Unemployment Benefits and Contractors:

    Brace yourself, things are about to get very technical.  In Minnesota, the statute doesn’t explicitly define independent versus employee.  Instead, the laws in Minnesota first try to determine whether your job was “employment” or not “employment.”  The rule is Minnesota statute 268.035.

    As you can see, Minnesota statute 268.035 states “employment” does NOT include services from an independent contractor.  

    Often, employers will use a contract or form to prove why a person was an independent contractor.  However, just because a document classified another person as an independent contractor doesn’t mean they were correctly identified.  For this reason, issues regarding an independent contractor and unemployment benefits are regularly scrutinized by the unemployment office.

    Minnesota Case Law for Unemployment and Independent Contractors:

    In a case called Kirkov v. Helpful Hands Transportation, Inc, the Minnesota Court of Appeals used five factors to determine whether a worker was independent or not and if they could collect unemployment benefits from Minnesota.  

    The five factors were as follows:  did the worker have (1) the right to control the means and manner of performance; (2) what was the mode of payment; (3) who furnished material or tools; (4) who controlled the premises where the work is done; and (5) was there a right to discharge.

    If you are thinking to yourself the list of factors didn’t help you much, then you would wouldn’t be to far off.  Again,  the issue regarding an independent contractor and unemployment in Minnesota is a confusing issue and is fact specific.  

    In other words, your situation is going to be different situations previously decided by an unemployment law judge.  Thus, you need to have a game plan.

    Final Thoughts on Independent Contractors collecting benefits in Minnesota

    The bottom line is this – if you are trying to collect or defend your right to unemployment benefits and your case involves whether or not your role was independent, seek help from a professional.  

    Unfortunately, the classification of workers and their titles has exceeded common sense and there is a lot at stake for both workers and their employers.

  • Do I have to Talk During a Probate in Minnesota?

    Do I have to Talk During a Probate in Minnesota?

    Probate in Minnesota can be a tangled mess, similar to the picture displayed at the right.  None the less, it doesn’t have to be.  If you are reviewing the probate in Minnesota, use the following as a brief introduction.  If you need help with probate in Minnesota, please contact this law office for help.

    What is the process for Probate in Minnesota?

    Probate in Minnesota is the legal process of settling your estate in court after you die. Your property is gathered and inventoried, your debts are paid, and everything left over is divided among your heirs. Your personal representative is responsible for “probating” your will. If you have no will or did not name a personal representative, the court will appoint one for you.

    Probate in Minnesota when there is a will begins by filing an application with the probate court. Probate in Minnesota ends when all debts and taxes are paid and all assets are distributed. If there is disagreement over your will, a probate judge assigned to the case will resolve the differences.

    When is Probate in Minnesota necessary?

    The laws specific to probate in Minnesota apply to the estates of people who were residents of Minnesota at the time of their death. Probate in Minnesota also applies to other states’ residents who own real property in Minnesota.

    Having a will does not avoid probate in Minnesota. The need for probate depends on what property you own and whether you own it alone or with others. Real estate. Unless real estate is owned in joint tenancy with right of survivor ship or placed into a trust, it must be probated. Joint tenancy means that the property is owned by two or more people who have an undivided interest in the property, and that interest continues in the survivor after other owners die. If you are a resident of Minnesota and own real estate in another state at the time of your death, the probate laws of that state will apply to that real estate. In other words, real estate is probated in the state where it is located.

    If your estate is worth less than $50,000, your heirs may be able to collect the property without going to court by using an Affidavit for Collection of Personal Property. Your personal representative should notify all of the heirs of the property that they can collect. Heirs may not take your personal property until 30 days after your death. If your personal property exceeds $50,000 or you own real estate in your name alone, your estate must be probated.

    What is not subject to Probate in Minnesota?

    Some kinds of property and assets do not need to be probated. These include property owned as joint tenants, jointly held bank accounts, payable-on-death accounts, life insurance proceeds to a specific beneficiary, and pension benefits with a designated beneficiary in the event you die.

    As discussed previously, holding title to property in joint tenancy means that you and another person each have an undivided interest in the property and a right to own it after the other person dies. In the case of real property, this fact would be stated in your title documents. When a co-owner dies, the surviving property owner must file a certified copy of the death certificate of the deceased property owner and an affidavit of survivorship with the county recorder or registrar.

    As in joint tenancy of real property, you and one or more people may be listed as account holders of the same financial account. If one of the joint account holders dies, the other joint account holders own the money in the shared bank account.

    A payable-on-death account is an individually owned account in which you choose someone else to receive the funds in your account upon your death. The beneficiary, or person getting the money upon your death, has no right to these funds until your death. You may set up a POD by contacting your financial institution. You may change the beneficiary by completing a new signature card at any time.

    Life insurance proceeds. Your life insurance policy can indicate a specific person, called a “beneficiary,” who will receive your insurance proceeds when you die. Call your insurance agent or company if you are interested in naming a specific person or persons to receive your life insurance money.

    How do I Probate in Minnesota?

    Your personal representative starts a probate proceeding by filing an application or petition with the probate court in the county where you lived at the time of your death. Probate proceedings in Minnesota may be either formal or informal, and generally must be initiated within three years after the decedent’s death. The services of an attorney may be needed in order to correctly probate an estate.

    An informal probate in Minnesota includes filing an application with the probate court. In some counties, you must file the application in person. If the probate registrar determines the application is complete, the registrar will issue a statement of probate and appoint a personal representative. In the informal process, the personal representative may pay debts and inheritances and may otherwise administer the estate without the court’s supervision.

    Applications for informal probate in Minnesota should include the following:

    • The applicant’s interest in the proceeding (i.e. spouse, child, attorney, personal representative, etc.);
    • The decedent’s name, dates of birth and death, and the county and state of residence at the time of death;
    • The names and addresses of the decedent’s spouse, children, heirs, and any others named in the will if there is one, and if a person is a minor, listing that person’s age;
    • Statement showing venue if decedent was not domiciled in Minnesota at time of death;
    • The name and address of the person who is, or should be, named personal representative; and
    • Statement of applicant’s knowledge of probate or appointment proceeding concerning decedent filed in Minnesota or elsewhere.

    If there is a will, the following also must be included in the application:

    • A statement that the original will is in the court’s possession, accompanies the application, or an authenticated copy of a will probated in another jurisdiction is attached to the application;
    • A statement that the will has been validly executed;
    • A statement that the applicant is not, upon investigation, aware that the will has been revoked; and
    • A statement that the time for beginning informal probate proceedings has not expired, which is generally three years after the decedent’s death.

    The probate registrar has discretion to either accept or reject the application. It is not a final determination if the registrar rejects the application and does not prevent the will from undergoing formal probate proceedings.

    Formal. Filing a petition with the court, starts formal proceedings. The petitioner then must appear before a court at a hearing. Because most people lack experience in formal probate proceedings, it is best to consult an attorney if an informal probate proceeding cannot resolve the estate. If the court finds that the petition is complete, the court will issue an order for probate and appointment of the personal representative.

    How will the estate be distributed to heirs for Probate in Minnesota?

    If there is a will, the personal representative should distribute the estate property according to the will. If there is no will, the estate property will be distributed according to state intestate succession laws.

    The law generally provides that, without a will, your estate will pass to your spouse, if still alive, but in situations where either spouse has children from other marriages, the share of the spouse may be less than the entire estate. If your spouse is not alive, your estate will pass to your children in equal shares. You should consult an attorney to determine exactly how your estate will be divided if you do not have a will.

    Sometimes, relatives cannot be located or traced. In this case, assets of the estate that cannot be distributed are deposited with the county treasurer until claimed.

    What taxes must be paid for Probate in Minnesota?

    Federal law provides that an individual can transfer up to $3,500,000 to someone other than a spouse before incurring estate tax. If you are married, you can transfer any amount of property to a spouse during your lifetime or after your death without incurring federal estate tax. Individual tax law may vary, however, and you should review the tax laws of the states where you have property. For example, Minnesota tax maybe due on some estates over $1,000,000.

  • Is Funeral Planning in Minnesota Dead?

    Is Funeral Planning in Minnesota Dead?

    Funeral planning in Minnesota is a special process. Whether thought through in advance or addressed in a moment of need, funeral planning is different for every person and family.

    Under Minnesota law, you may include directions regarding your funeral and burial in your will or in a special document you sign for that purpose. You may appoint a person who has authority to make arrangements after your death.

    Estate Planning Attorney

    Estate Planning

    Contact Now

    How should I plan my funeral?

    Some things to keep in mind when planning a funeral:

    • Your budget and true desires should guide your choice of arrangements. You generally have the option of choosing cremation, burial in a cemetery plot, or burial in a mausoleum; and
    • You may wish to involve several members of your family, close friends and/or clergy members when you make funeral arrangements.

    Minnesota law and the federal Funeral Rule give you tools to control the cost of funerals. When you request funeral information, these laws require funeral directors to provide detailed, pre-purchase price information, including a “General

    Price List” of all services offered that lists an effective date. Following the funeral arrangement, a detailed itemization, called the “Statement of Funeral Goods and Services Selected,” must be prepared.

    There are many laws in place that protect consumers from deceptive practices by the funeral industry. For example, a funeral provider cannot require that you purchase a casket for cremation. A funeral provider cannot condition the purchase of one funeral service upon the purchase of another funeral good or service.

    Further, it is against the law for funeral providers to charge a fee for handling, placing or setting a funeral good based upon the fact that the good was not purchased from that funeral provider.

    How should I pay for my funeral?

    You can make your own funeral arrangements before you die. You may set aside funds to pay for your funeral. One way to do this is to invest the needed amount of money, or put it in a bank account, making sure it will be accessible to family members upon your death. A second option is to prepay for funeral goods and services.

    What safeguards exist for consumers who pay in advance?

    To help safeguard prepaid funds, Minnesota law requires a funeral director or cemetery operator to place all prepaid funds in a trust account in a bank or other financial institution until the need for your funeral arises, and to advise you of the financial institution’s name and the trust account number.

    Minnesota law allows you to make arrangements so that you can receive a full refund of all prepaid funds at any time before services are provided.

    There are also safeguards in the law to ensure that funds are available for the long-term upkeep of cemeteries and mausoleums. Certain cemetery operators must place in trust 20 percent of funds received from the sale of cemetery lots and 10 percent of funds from the sale of mausoleum space. These “permanent care and improvement” trust accounts are to ensure the future care and maintenance of cemetery grounds and buildings.

    Finally, the law requires annual reporting and record keeping for both “pre-need” and the “permanent care and improvement” trust funds:

    • Licensed funeral directors must file an annual report disclosing the status of the pre-need trust fund with the State Commissioner of Health;
    • Cemetery operators must file an annual report disclosing the status of the permanent care and improvement trust fund with their County Auditor; and
    • The Minnesota Department of Health, Mortuary Science Section offers information and takes complaints on funeral goods and services.
  • Is Opening an Estate in Minnesota Easy?

    Is Opening an Estate in Minnesota Easy?

    In Minnesota, opening an estate means filing a petition in a Minnesota Probate Court such that assets of the person who died can be distributed.  When a petition is filed to open an estate, the petition requests either an informal proceeding or a formal proceeding.

    When an estate is opened, there are many pitfalls that can cause trouble.  For example, the process of opening an estate can differ depending on whether the person who died had a will, was married, had children, had creditors, or was insolvent.

    When an estate is opened in Minnesota, a petition will request the designation of a “personal representative.”  Once formally designated, a  personal representative has the duty to administer assets of the estate.  Without opening an estate a personal representative cannot be assigned.  As a result, the most significant element of a petition asking a Minnesota Court to open an estate is the designation of a personal representative.

    Also, opening an estate in Minnesota is a significant process when trying to distribute assets of a loved one because both creditors and “interested persons” can serve as a personal representative despite a Will stating otherwise.

    Additionally, opening an estate is a public process.  Once opened, notice to creditors is required and the contents or value of a person’s estate becomes public knowledge.  Once an estate is opened, the remaining elements of the process include administering estate assets and closing an estate.  Between opening an estate and closing an estate, this process can take many consecutive months.

    If you are considering opening an estate or need representation with this process, please consider contacting an estate lawyer for help and advisement.

  • What are the New Rules for an Unemployment Reconsideration?

    What are the New Rules for an Unemployment Reconsideration?

    MN Unemployment Request Reconsideration is a fancy term meaning you want your unemployment case re-reviewed.

    Generally, the party who lost after having their case reviewed by an unemployment law judge can have their case re-reviewed by filing a MN Unemployment Request Reconsideration.  MN Unemployment Request Reconsideration is the second level (Level II) to an appeal for benefits.

    What is the goal of a MN Unemployment Request for Reconsideration?

    If done correctly, there are two goals when a person or an employer files a request for reconsideration in Minnesota:

    (a) Reverse the Unemployment Decision; and or

    (b) Ask the Unemployment Law Judge to order an additional phone appeal (Level I).

    What does a MN Unemployment Request for Reconsideration look like?

    First, both the Applicant and Employer can file a request for reconsideration on-line.  However, the on-line system limits you to a small box to write information in.  As a result, it is hardly ideal to file a request for reconsideration on-line.

    On the other hand, if you file a formal legal document called a Memorandum of Law, your unemployment request for reconsideration in Minnesota can be drafted in a manner that supports your request.  In other words, you are likely going to need more than a small box to highlight case law, Minnesota rules, and space to outline legal arguments favoring your cause.

    Generally, a MN Unemployment Request Reconsideration includes a section highlighting the issue identification number, a statement affirming your appeal, an outline of issues you are requesting a re-review of, and an explanation of laws relevant to your situation.

    As a result, a MN Unemployment Request Reconsideration can be extremely lengthy depending on issues and exhibits.

    Who reviews the MN Unemployment Request for Reconsideration?

    In most cases, a MN Unemployment Request Reconsideration is reviewed by the same Unemployment Law Judge that reviewed the unemployment phone appeal.  However, there are exceptions to this possibility.

    When will a MN Unemployment Request for Reconsideration be changed?

    The likelihood of a request for reconsideration in Minnesota being granted in your favor depends on legal arguments, whether this includes a reference to Minnesota laws, case law, or other legal doctrines, a  MN Unemployment Request Reconsideration should be approached with care.

    What are the results for a MN Unemployment Request for Reconsideration?

    After a MN Unemployment Request Reconsideration is filed, there are three potential outcomes:

    (i) The Unemployment Law Judge reverses the original decision;

    (ii) The Unemployment Law Judge grants another phone appeal (Level I); or

    (iii) The Unemployment Law Judge  denies the request for reconsideration and the losing party must consider an appeal to the Minnesota Court of Appeals (Level III).

    When should a MN Unemployment Request for Reconsideration be filed?

    Time is definitely not on your side.  Because research will likely be involved in your request and Minnesota law mandates the filing of a reconsideration within a specific period of time, you are limited to a couple of weeks from the date you received the decision from the Level I Phone Appeal.

    Also, time is of the essence because you will need time to seek out other documents and or exhibits relevant to your case.

    Is a MN Unemployment Request for Reconsideration necessary?

    According to the unemployment laws in Minnesota, the losing party in an appeal for unemployment benefits must, as a predicate to appealing the matter to the Minnesota Court of Appeals, seek a request for reconsideration from the Unemployment Law Judge’s (ULJ) determination.   In other words, failing to file a timely request for reconsideration in Minnesota can be detrimental to the person or employer seeking an appeal.

    If the other party files a MN Unemployment Request for Reconsideration, should you file one too?

    If you do not stand up for yourself, nobody else will.  In other words, it is critical that you respond to a request for reconsideration if filed by the other party.  This is true for both employers and applications.  Otherwise, the Unemployment Law Judge may reverse their decision because you failed to respond accordingly.

    Who can help you with an Unemployment Request for Reconsideration?

    If you are considering a MN Unemployment Request Reconsideration, please consider contacting an unemployment lawyer for help.  As you proceed through the appeal process, your rights related to unemployment benefits become more complicated.

  • How do I know if I am guilty of Unemployment Fraud MN?

    How do I know if I am guilty of Unemployment Fraud MN?

    Unemployment fraud MN is defined in two areas under Minnesota law.

    First, it is defined under Minnesota statute 268.18 as any person who receives unemployment benefits by knowingly misrepresenting, misstating, or failing to disclose any material fact, or who makes a false statement or representation without a good faith belief as to the correctness of the statement or representation, has committed fraud.

    Second, unemployment fraud can turn into theft under Minnesota statute 609.52.  This is in addition to potential criminal penalties and or administrative penalties supported under Minnesota statute 268.182.

    Unemployment Lawyer

    Unemployment Help

    Contact Now

    What should you do if you are accused of Unemployment Fraud MN?

    Although the unemployment office sometimes miss-classifies unemployment fraud issues, approach an accusation like this with extreme care and diligence.  This is true because time is not on your side.  In other words, Minnesota law has time restrictions that requires you to file an appeal by a certain date.  If you don’t file an appeal accordingly, it could bring forth unintended consequences and bar your rights.

    Does Unemployment Fraud MN happen a lot?

    As the request for unemployment benefits becomes increasingly more complicated, unemployment fraud MN is occurring more and more frequently.  

    Although not exclusive to unemployment fraud, in the year 2012, the Minnesota unemployment office overpaid applicants more than eighty-five million dollars ( $85,000,000) in unemployment benefits.  Since the year 2009, an unemployment overpayment has become twice as likely to occur as it did in previous years.

    What is the process for Unemployment Fraud MN?

    Specific to unemployment fraud under rule 268.105, you can appeal an unemployment overpayment.  Generally, an appeal related to an MN Unemployment Overpayment follows the same procedures and steps as that required during other levels of the unemployment appeal process.

    The process for unemployment fraud under Minnesota statute 609.52 depends on the County, the amount owed, and whether or not you are seeking an appeal through the unemployment process.

    What is the difference between Non-Fraud and Unemployment Fraud MN?

    A Minnesota Unemployment Overpayment is classified under two categories: a nonfraud unemployment overpayment or a fraudulent unemployment overpayment.  

    Other than the criminal component, the biggest different is an a fraudulent claim can affect your credit history, professional licensing, and the monetary penalties and interest are more significant than those imposed for a nonfraud unemployment overpayment

    Although the process for a fraud and non fraud under rule 268.105 is the same, your rights are different and the burden of proof is different.

    What should you do about Unemployment Fraud MN?

    Yes, you have rights when accused of unemployment fraud MN, but you need to act fast.  If to much time expires and you do not properly file an appeal, you will automatically waive your right to reduce or negate your unemployment overpayment.

    Should you hire a lawyer for Unemployment Fraud MN?

    Unfortunately, yes, this is likely an issue that you will need help from a lawyer.  Of course, you have the right to proceed without a lawyer.  However, the consequences specific to fraud can be severe.  As a result, you should consider proceeding with care.

    If you want to review your rights or need help understanding the process, please consider contacting this law office for help

  • Employees Who Quit Job For Health Reasons

    Employees Who Quit Job For Health Reasons

    If you are looking for an example why a worker should consider having their unemployment appeal reviewed by an unemployment lawyer, look no further than a recent decision in Minnesota called Newkirk v. Gerard Treatment Programs, LLC.

    In this case, an applicant from Minnesota requested unemployment benefits after she quit her job for medical or health issues.  That being said, the applicant for unemployment benefits made an argument regarding the fact that she quit her job for medical or health issues despite the fact that other arguments could have been made that would have assisted her in her request for unemployment benefits.

    Unfortunately, the worker in this case chose to utilize a weaker argument and insisted that she quit her job for medical or health issues.  Stating that she quit her job for medical or health issues was a weaker argument because she didn’t satisfy all of the conditions required when a person quits their job for medical or health issues.  After she was identified as eligible, it was identified that she didn’t quit.  Despite this, the employer appealed the applicant’s claim for unemployment benefits and an unemployment appeal hearing occurred.

    Case Law Discussing Health Issues

    As outlined by the Minnesota Court of Appeals, the applicant in Newkirk v. Gerard Treatment Programs insisted on a legal argument that failed to help her qualify for unemployment benefits in Minnesota.  In Minnesota, a worker who quits their job is ineligible for unemployment benefits. 

    On the other hand, a worker who quits their job for medical reasons might be eligible for unemployment benefits if they quit their job because of a serious illness or injury made it medically necessary for the worker to quit.  But, a worker who quits their job has nearly a dozen other legal arguments available to them on why they should be eligible for unemployment benefits.  

    Despite this, the applicant in this particular case limited her argument to one issue – she quit her job for health issues.

    Quitting A Job for Health Issues

    A person in Minnesota who quits their job for medical or health issues is not automatically eligible for unemployment benefits.  Quitting a job for health issues or medical reasons in Minnesota is an extremely complicated argument because it requires specific communications between the worker and the employer.  

    Without outlining these communication requirements, an applicant for unemployment benefits will likely loose their request for unemployment benefits for not meeting requirements mandated by Minnesota law.

    As referenced above, the Minnesota Court of Appeals recently reviewed Newkirk v. Gerard Treatment Programs where the worker quit their job for medical reasons.  Had the worker not solely argued she was eligible for unemployment benefits after quitting for medical reasons, perhaps the Minnesota Court of Appeals, which heard the applicant’s unemployment appeal, could have used a different legal theory to support her claim for unemployment.  But, because the applicant failed to outline this argument, the Minnesota Court of Appeals didn’t have the authority to decide this element of the unemployment appeal.

    Therefore, please consider using all available arguments rather than one argument when appealing for unemployment benefits and prevent making the same mistakes the applicant in Newkirk v. Gerard Treatment Programs, LLC made.

  • Elder Law

    Planning for Incapacity

    At some point you may need help managing your finances or property. If so, it pays to have done some advance planning. Explained below are a few management tools you may use to help plan for incapacity. If you don’t make advance arrangements it may be necessary for the courts to set up a guardianship or conservatorship for you.

    You might not need a formal arrangement to receive help with your finances. A trusted family member may help write checks, file tax returns and help with other financial matters. If you have someone help you, make sure that person keeps good records and goes over them with you periodically. For your protection, you generally should not transfer money or property out of your name into the name of your helper without first consulting your lawyer. If you do not have a lawyer and wish to consult with one, you can call the Minnesota State Bar.

    Be aware that property transfers can make you ineligible for Medical Assistance (the program that helps pay nursing home and other medical expenses). Transferring your property to another person may also mean that your money will no longer be available to you if that person dies, is divorced, or goes bankrupt. Talk to your lawyer about these possibilities as well.

    Formal Arrangements

    You may want to set up a more formal arrangement for your finances. There are several ways to do this. You should choose the way that best addresses your needs and makes you the most comfortable.

    Banks offer several alternatives that may fit your needs. You can set up a joint account, an “authorized signed” account, or a “payable on death” account. Talk to your lawyer or banker to see which of these might meet your needs.

    You may wish to create a “durable power of attorney.” This is written authorization for someone to manage your property or financial matters according to your directions. A durable power of attorney remains valid even if you should later become incompetent. Forms are available to create durable powers of attorney, but you should be very cautious in completing them — the person you appoint could get authority to dispose of all your property, even by giving it to himself or herself. Talk to your lawyer about ways to protect yourself and your finances if you plan to use a durable power of attorney.

    Guardianship and Conservatorship

    Guardianship and conservatorship result from court proceedings where the court appoints someone to make decisions for you. This is done to protect you, if you become incapacitated and unable to make your own financial or personal decisions. Under Minnesota law, guardianship and conservatorship are very similar, but guardianship limits more of your civil rights, such as the right to vote. Because of this, conservatorship is usually favored over guardianship. The protected person in this relationship is called the “conservatee,” and the person named by the court to make decisions is called the “conservator.” Under guardianship, the protected person is the “ward,” while the person named by the court is the “guardian.”

    If you should become incapacitated and have not previously planned for incapacity, a guardianship or conservatorship may be the only way to handle your personal affairs. Anyone can petition for or be appointed to be your guardian or conservator. A person may be appointed even against your wishes if the court determines such appointment is in your best interests. By planning ahead, however, you can have a say in this process and consequently protect your independence.

    “Conservatorship planning” (also called “nomination of conservator”) involves a written document, like a will, in which you name the person you want for your conservator. You can also include instructions on how you would want your personal and financial matters handled by your conservator. For example, the conservator could be instructed to manage your property, know where you would like to live, and be informed about your wishes regarding health care. (The same person could also serve as your health care power of attorney.) Then, if you should become incapacitated and need a conservator, the court must name the person you chose and order that your instructions be followed, unless the court finds that this would not be in your best interests. Be aware that the person you choose is not required to serve as your conservator — so choose a reliable person and discuss your plan with the person in advance to make sure he or she agrees with it.

    If you have other informal arrangements with relatives or formal planning arrangements such as a durable power of attorney, you may not need to do conservatorship planning. However, if it is likely that someone would challenge your planning arrangements (for example, if there might be disagreements within the family), you should use conservatorship planning as a “backup” to your other planning arrangements. Remember, anyone can petition to be a conservator or guardian for an incapacitated person, and a conservator or guardian can revoke or terminate prior planning arrangements. By naming the person you would want to be your conservator or guardian, you have the best possible protection against the appointment of someone you would not want to be your conservator.

    Planning for Your Estate Wills

    Wills are important documents that help ease the transition of ownership of an estate after a person’s death. An estate consists of bank accounts, houses, land, furniture, automobiles, stocks, bonds, life insurance policies, retirement funds, pensions and death benefits.

    Your will should ensure that your assets are distributed as you wish. And, you still have full use of your property while you are alive.

    In Minnesota, you must be at least 18 years old and of sound mind to make a will. The will must be in writing and must be witnessed by at least two people, both of whom must also sign the will. You must intend for the document to operate as a will. The will must be signed by you, or by another person at your direction in your presence. Handwritten wills are recognized as valid in Minnesota only if the will is witnessed and signed by two people. Notarization by itself is insufficient to make a handwritten will legally binding.

    Your will should clearly state who will get your property upon your death. Minnesota law provides that a spouse inherits a specified amount of property, even if she or he is left out of the will. You may, however, disinherit a child, if your will clearly states that you do not wish the child to get anything.

    A personal representative (also known as an executor or administrator) should be named in the will. This person will be responsible for seeing that the property is distributed as you desire.

    Wills can be changed by writing a new one, or by adding a “codicil,” which is an addition to a will. Wills cannot be changed by simply crossing out language or writing in new provisions. Such alterations will not be effective. The codicil must be written, signed and witnessed the same way as the will, and should be attached to the will.

    If a will specifically states that personal property should be distributed by a separate document, it is all right for a person to distribute most personal property in a handwritten statement. The statement can be written after the will is signed, and it can be changed without revising the will itself.

    A will is effective until it is changed or revoked. It is a good idea to periodically review your will. Changes in your family, the value and kind of property, tax laws, or a move to another state may make changes in the will advisable.

    You may revoke your will; however, revocation must be done in strict compliance with the law and the assistance of an attorney is highly recommended.

    A surviving spouse who is not satisfied with his or her share in the will may elect to waive rights under the will and take his or her share according to state law. (A surviving spouse should seek legal counsel to do this.)

    Your will should be kept in a safe place. The original will should be placed where it can easily be found after your death. In Minnesota, the Probate Court or Court Administrator’s Office will accept wills for safekeeping at no charge or for a nominal fee. You have the right to get your will back at any time. Putting a will in a safe deposit box might make it inaccessible after your death until probate begins, unless you are survived by a person who jointly owns the box and would have access to the box after your death.

    If you do not have a will, your estate will be distributed according to Minnesota’s law of intestate succession. This law generally provides that, without a will, your estate will pass to your spouse, if still alive. If your spouse is not alive, your estate will pass to your children in equal shares. You should consult an attorney to determine exactly how your estate will be divided if you do not have a will.

    Living Trusts

    A trust manages the distribution of your assets. A trust is created by the transfer of property by the owner, or “grantor,” to another person, the “trustee.” The trustee holds the title to the property and manages the property for the benefit of a third party, the “beneficiary.” There are two general types of trusts. The “living” trust is created during the lifetime of the grantor when all or part of the grantor’s property is transferred into the trust. The other type of trust is called a “testamentary” trust. In a testamentary trust, the property is transferred into the trust after the grantor dies.

    There are potential drawbacks to a living will. For example, transferring property into a living trust can make you ineligible for Medical Assistance. Talk to your lawyer about that possibility. Also, if the grantor is also the trustee, the grantor has a fiduciary obligation to the beneficiaries for both present and future income. This, for many, may be the biggest drawback of a living trust.

    There are also good reasons to consider a living trust. A living trust, unlike a will, enables you to have a trustee with financial expertise manage your assets during your lifetime. A living trust can allow for a smooth transition of property if you become incapacitated or incompetent. A living trust can also protect your privacy regarding the distribution of your assets.

    With a will, the probate laws require that an inventory of the estate’s assets is filed with the court. The inventory is public information. With a living trust, generally only the beneficiaries of the trust will be informed of the nature and the value of the assets. In cases where there is both a will and a living trust, this privacy may be lost.

    A living trust is legal in Minnesota if properly written. It is important that a living trust be written to reflect the individual characteristics of each person’s estate while complying with Minnesota law. How a particular trust is drawn up depends on the type of property being placed in the trust and the purposes for which the trust is formed. It is good to have your attorney evaluate the use and legality of a living trust in the context of your other estate planning documents and objectives.

    If the living trust contains all your property, a will may be unnecessary and you can avoid probate. If the trust contains only part of your property, you need a will. If you want your property to go into the trust after your death, your will should include a “pour-over” provision to put the remaining property into the trust upon your death. Also, a will can be used to distribute personal belongings, identify guardians for your children, and provide for an executor to handle any unfinished business.

    Minnesota does not have an inheritance tax. Federal law requires that an individual with an estate totaling more than $600,000
    file an estate tax return. If your estate is less than $600,000, there will not be any inheritance tax owed on your estate whether it transfers through the probate courts or in a trust.

    Prepared forms or “kits” used to establish living trusts are currently marketed through magazines, brochures and door-to-door salespeople. Although the forms themselves may not be illegal, they may be too generic to suit you and your situation.

    Planning a Funeral

    Minnesota law and the federal Funeral Rule give you tools to control the cost of funerals. The Funeral Rule requires funeral directors to provide detailed, pre-purchase price information, including a General Price List of all services offered. Following the funeral arrangement, a detailed itemization, called the Statement of Funeral Goods and Services Selected, must be prepared.

    Some things to keep in mind when planning a funeral:

    • Your budget and true desires should guide your choice of arrangements
    • You may wish to involve several members of your family, and perhaps an objective friend or clergy member when you make funeral arrangements.

    Safeguards for Consumers

    You may choose to make your own funeral arrangements, and set aside funds to pay for your funeral. One way to do this is to invest the needed amount of money, or put it in a bank account or insurance policy, making sure it will be accessible to family members upon your death. Another option is to prepay for funeral goods and services.

    Unfortunately, money received from the advance sales of funeral goods and services is sometimes mishandled. To help safeguard prepaid funds, Minnesota law provides several protections. Under state law, a funeral director or cemetery operator must place all prepaid funds in a trust account in a bank or other financial institution until the need for a funeral arises. Minnesota law allows you to ask for and receive a full refund at any time before goods and services are provided.

    There are also safeguards in the law to ensure that funds are available for the long-term upkeep of cemeteries and mausoleums. Cemetery owners must place in trust 20 percent of funds received from the sale of cemetery lots and ten percent of funds from the sale of mausoleum space. These “permanent care and improvement” trust accounts are to ensure the future care and maintenance of cemetery grounds and buildings.

    To help safeguard prepayments for funeral goods and services, state law also requires funeral directors and cemetery operators to give you the name of the financial institu
    tion where your money is in trust, and the account number of that trust. The law requires annual reporting and record keeping for both “pre-need” and the “permanent care and improvement” trust funds:

    • Licensed funeral directors must file an annual report disclosing the status of the pre-need trust fund with the State Commissioner of Health.
    • Cemetery operators must file an annual report disclosing the status of the permanent care and improvement trust fund with their County Auditor.
  • Getting Fired for checking Sports Scores at Work

    Getting Fired for checking Sports Scores at Work

    Were you fired for checking sports scores at work?  As an alternative, were you given a formal warning for checking sports scores at work?  If so, please read on.

    Primarily, there are two times during the year that workers tend to get fired for checking sports scores at work, although certainly not exclusive.

    This law office sees workers are getting into trouble when checking their fantasy football scores.  Also, this law office sees workers are getting into trouble when checking scores during March Madness.

    Can you get fired for checking sports scores at work?

    Obviously, workers are getting fired for checking sports scores at work – but is this legal?  Unfortunately, it depends on the situation.  During a consultation, this law office will review whether you were checking scores on your phone or on the company’s web site.

    Also, this law office reviews the policies in place for technology at your workplace.  Just because your employer doesn’t have  a formal policy doesn’t imply you have been given permission for checking sports scores at work.

    The most significant issue is where you work.  In other words, the rules applicable to your situation depends on the State where your place of employment is domiciled.

    Minnesota’s opinion on checking sports scores at work:

    Minnesota Court of Appeals decision A10-146 affirmed that an employee’s use of a cell phone was employee misconduct.  The Applicant argued that his cell-phone use was not misconduct because of the special considerations given to discharges resulting from a single incident.

    Although Minn. Stat. § 268.095, subd. 6(a) (2008), stated that misconduct did not include “a single incident that does not have a significant adverse impact on the employer,” since 2009 and applicable here, the statute provides: “If the conduct for which realtor [Applicant] was discharged involved only a single incident, that is an important fact that must be considered in deciding whether the conduct rises to the level of employment misconduct under paragraph (a).” Id., subd. 6(d) (Supp. 2009).

    The Applicant testified that he occasionally checked sports scores on his cell phone for other employees and the video indicates that the Applicant used his cell phone on multiple occasions over a lengthy time.

    Because the Applicant’s cell phone use was in knowing violation of the employer’s policy, the Minnesota Court of Appeals conclude that the Unemployment Law Judge did not err in determining that the Applicant was discharged for misconduct.