Category: Unemployment

Stay informed on unemployment law with insights and legal guidance. Blog covers unemployment benefits, eligibility requirements, appeals, reconsiderations, overpayments, penalties, misrepresentation, and evidence. Get the latest updates and practical advice to navigate the unemployment claims process.

Unemployment Luck: Tip #007

Recently, I have worked with a number of applicants trying their hand at being lucky. In other words, leaving their appeal up to chance. For this reason, I believe the unemployment tip referenced below is going to save people from making a bad choice.

Unemployment Tip # 007 – Being lucky versus good is a horrible strategy. Instead, assume the unemployment law judge is not looking out for the Applicant’s best interest and know which rule proves one’s eligibility.”

In other words, hoping an ULJ will pick the right law to grant benefits is a loosing strategy. Instead, focus on the strongest argument favoring benefits.

August 29, 2017
Interview for the Unemployed, Tips and Thoughts

An interview for the unemployed is stressful. Answering questions about a job loss makes this process even more difficult. This is especially true when a person does not know how to classify the events that led up to their job ending.

Because most folks who contact me are unemployed, I am very familiar with this type of anxiety.

Being Scared about the Unemployment Label

No, I do not think workers should be scared of referring to their job loss as a lay off. Really, what alternative do we have? It happened and now we need to move on, right? On the other hand, we cannot make the situation worse by falling for a trap.

For one, a layoff and getting fired is practically the same thing. The distinction people get stuck on, are the words and events that led to their job ending.

Whether an employer is honest or they stretch the truth to avoid unemployment taxes imposed by Minnesota, is not a problem or issue a person should bring to their next interview and job. Please read on, for more tips.

Interview For the Unemployed Worker: Resume

Personally, I like to see people focusing more on their skills and talents within a cover letter, resume or application than a negative.

First, time and space is of the essence. Second, the interview process is likely the better venue for discussing a job loss. Third, a person gets hired based on their talents. You already know this, but I will say it always: focus on your positive attributes instead.

Applications for Unemployed Workers in Minnesota

Surprisingly, I meet with a lot of people who cannot wait to fill out a job application and use their past employer as a reference or summarize a storyline that led to their job ending. Don’t do this!

Would a divorced person encourage a potential date to ask their ex-souse questions about a past marriage? Of course not! Your divorced? Ok, lets move on. Likewise, I believe the same is true for folks filling out applications and work past the unemployment process.

That said, a person who is divorced shouldn’t lie about being married. And, job applications shouldn’t lie about having a past job.

The trick is keeping it simple. In my experience, a lot of employees, workers, managers or whatever, are able to state with a clear conscious that their job ended because they were laid off. Period. When the situation is more complicated, I think seeking help is highly encouraged.

Unemployed Workers Getting Interviewed

Every person who has suffered a recent job loss (quitting or otherwise) should take their unemployment benefits seriously to assist in their transition. After that, focus on acquiring an interview.

The difference between a bad interview and a great interview is preparation. Unfortunately, unemployed workers are failing at the interview question about their job loss. Sometimes, future employers use “why do you want this job” as another way of asking about your job loss. Do not fall for this trap.

Luckily, you read this article and contacted me directly. Limiting an answer to a lay-off is so much easier than talking about a bunch of events which only a significant other and an attorney should know about. Perhaps you agree.

Either way, I wish you the very best.

August 22, 2017
Evidence for Unemployment: Tip #006
Evidence for unemployment can take on many different forms. For some, this means seeking a positive review, while others want copies of a video tape. That said, don’t underestimate the power of the spoken word.

Unemployment Tip # 006 – An Applicant’s testimony can sometime be more important than other forms of evidence, like a document, e-mail, etc. When faced with an appeal, verbalizing facts in a precise order can help Applicants win their appeal.”

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After pinpointing one’s own testimony, then start the process of collecting evidence. Perhaps this means making a decision about a subpoena. Either way, here are a few examples of evidence:
- An employee handbook,
- Job posters,
- History of other employees in a similar position,
- Positive performance reviews, etc.
Assuming evidentiary rules are followed correctly, when a person or employer submits evidence, the unemployment office will mark it with a watermark and return it to each party. Usually, this is done using a yellow envelope.

Help With Unemployment

Jasper Berg, J.D.

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August 14, 2017
Quit or Discharge: Unemployment Tip #005

Quit or discharge is a confusing question. In fact, it isn’t even a question. Instead, it is a legal issue often addressed by an unemployment law judge.

Sometimes, workers and employees are confused whether they quit their job or were fired. Applicants should never argue they do not know whether they quit or were terminated. Instead, find the unemployment law that best supports eligibility.

Unemployment Tip # 005 – When the reason a job ended is an issue, Applicants should never argue that they do not know. Instead, find the unemployment law that best supports eligibility.”

Before selecting quit or discharge, know that every question is a trick question. Really though, employees seeking unemployment benefits can take their case under control by knowing which element of rule 268.095 applies to them and why.

August 7, 2017
Unemployment Tip for Covered Employment Appeals

Covered employment is a significant issue you didn’t know existed. The issue is whether your job was counted as “covered employment” or the opposite, “noncovered employment”.

Noncovered employment isn’t good for benefits isn’t good for benefits. This specific term means a person is not eligible for unemployment. Sometimes, employers will argue that a certain job was “noncovered employment” to avoid or reduce taxes.

Unemployment Tip # 004 – Applicants should always be prepared to make the argument that their job was covered employment.

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Applicants who see this issue raised are using those working as a contract employee or as an independent contractor. Other jobs that run into problems are those aligned with the State of Minnesota.

Unfortunately, Applicants in Minnesota are often tricked into assuming it doesn’t matter. For those wishing to acquire benefits, it matters.

July 31, 2017
Submitting Job Applications to Remain Eligible for Unemployment

Submitting job applications to remain eligible for unemployment benefits is an art.

A lot of unemployed workers fail at giving the right answers when audited on their resume submission process. Thus, I want to quickly address this issue.

Job Applications and Unemployment

As you can read under Statute 268.085, workers and employees are required to to seek suitable employment while unemployed.

On the other hand, this unemployment rule fails to identify a specific number. As a result, you have a very ambiguous rule. For those who have kept up, this is what I tell newly unemployed workers. The hard part about an unemployment audit is this: one never knows when or if it will come.

For this reason, I like the idea of logging hours specific to the job search process (looking, applying, following-up, networking, etc.) versus the actual job submission process. After all, careers and jobs are not alike.

On the other hand, this I know: the number of jobs applied for should never be zero (0). For how long though, that is a more significant question, which is why folks generally need advice for their specific situation.

Logs for Job Applications

For those still stuck on the logging process, lets keep it simple, but spot on. A common theme for those that I represent is replacing working hours with job searching. In other words, if an applicant worked 40 hours, then replace those same 40 hours [if possible] with the job search process (looking, applying, following-up, networking, etc.).

Job Applications and Unemployment Audits

As much as it pains me to say it, having an unemployment account audited is a real thing. In my experience, one of the heaviest areas focused on by auditors includes job applications. For this reason, I encourage all receipts of unemployment benefits (especially those in Minnesota) to keep their a folder on their computer exclusive to their job search process.

I agree, there is likely a lot of gray, which again, is an issue that is going to be situation specific.

Finally, for those wondering how long they should keep this type of information, I recommend one of my past posts on this very topic.

July 25, 2017
Work Force Center: Unemployment Tip #003

Continuing on with my new series for unemployment tips, let’s address the work force center. For some reason, newly unemployed workers want to spill their story with the workers and staff members assigned to the workforce center they happen to visit.

Unemployment Tip # 003 – Second guess all advice coming from the Work Force Center regarding an appeal or how to handle a claim.

The call center at DEED and the various workers at the work force center are the eyes and ears of those who deny claims. Hopefully, applicants do not find out the hard way.

So, before contacting the work force center for help, consider the ramifications of doing so.

July 24, 2017
Telecommute and Unemployment in Minnesota

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

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

Telecommute and Unemployment in Minnesota Laws

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

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

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

Can you collect unemployment in Minnesota after being a telecommuter?

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

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

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

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

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

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

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

July 20, 2017
Medical Records for Unemployment: Tip #002

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

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

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

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

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

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

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

July 18, 2017
Applications: Unemployment Tip #001

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

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

Thus, here is the first tip of many:

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

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

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

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

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

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

Reconsideration Review Laws

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

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

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

Proceeding with a Reconsideration

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

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

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Unemployment Transcripts: Rule in Minnesota

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

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

Again though, the type of appeal (court of appeals versus a request for reconsideration) will dictate the process utilized for obtaining unemployment transcripts.
July 10, 2017
Unemployment Penalties Can Bite Back
Unemployment penalties are getting out of hand in Minnesota. Even worse, unemployment laws in Minnesota are getting worse.

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

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

Unemployment Penalties: Why There Are Problems

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

Appeal Unemployment Penalties

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

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

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

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

Evidence for an Unemployment Penalty

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

When time allows, other types of evidence includes:
- Documents (from a worker’s employment file) and
- Witnesses.
When one isn’t available or the employer is making life difficult, seeking a subpoena can be a strong response to what seems like a 900 pound gorilla.
June 19, 2017
Translate Unemployment and a Different Language

Applicants that speak and read a different language should always ask the unemployment office in Minnesota for a translator.

Whether applicants are asking simple questions by phone, appealing benefits or filling out questionnaires, the same rule applies. Ask for a translator.

Different Language is Obscure?

Different dialects? Different tribes or regions? Be specific. I believe people should make the unemployment office adapt to their specific language or needs versus an applicant adapting to DEED’s availability.

Translator Requests

In my experience, requesting a translator or translation should always be in writing because Applicants need to generate a paper trail. A paper trail showing a need or request for help is a great way to show support for due process.

Translator gets Denied

Generally, translating services through Minnesota’s unemployment office are free.

On the other hand, asking a second person (like a family member or through a paid service) is an excellent strategy when applicants are unsure of the translator hired by the court.

June 9, 2017
Teenagers are Employees Too
n Minnesota, teenagers are employees too. As our local youth look for summer jobs, sometimes employers illegally classify younger workers or make false stereotypes.

Believe it or not, teenagers (children) are more protected and have more legal rights than adults.

In fact, Minnesota devoted Chapter 181A to protect children workers. Likewise, there are federal rules that protect teenage workers too.

Teenagers Looking for Summer Jobs

For the teenagers looking for a summer job, I encourage you to consider:
- Applying for a job in-person,
- Practice interview questions,
- Keep calling “them” to see if an opportunity has opened up,
- Job openings change on a weekly basis,
- Dress semi-casual for your interview,
- Put your phone away during the interview,
- Consider knowing and applying the Fish Philosophy, and
- Stand-Up for yourself.
June 7, 2017
Growing Problems with Unemployment for Farmers
Unemployment for farmers and agricultural workers is crazy complicated in Minnesota. Quite frankly, it shouldn’t be so hard. But, it is.

So we are clear, I am not talking about farm owners.

Instead, I am referring to people who help farmers (employees, contractors, side-hands, etc.) and their agricultural process.

Unemployment for Farmers is Hard Stuff

Here is why this question is hard. I didn’t state impossible…I said hard. There is a difference.

Minnesota unemployment laws generally exclude workers from benefits and make the farm worker prove an exception.

employment in “agricultural employment” [is non-covered employment] unless it is “covered agricultural employment” under subdivision 11; or

if employment during one-half or more of any pay period was covered employment, all the employment for the pay period is covered employment; but if during more than one-half of any pay period the employment was noncovered employment, then all of the employment for the pay period is noncovered employment. “Pay period” means a period of not more than a calendar month for which a payment or compensation is ordinarily made to the employee by the employer.“

Looks complicated, right? Right. And in my experience, most farm employees and helpers helpers rarely go into a job thinking about Minnesota rule 268.035.

Laws for Unemployment and Agriculture

The rule every farm worker should review is whether they have a job that is “covered agricultural employment”. Generally, there are two types of farm workers that meet this rule:
- The worker was employed by a farm that paid $20,000 in wages during a 3 month window, or
- The worker was employed by a farm that hired 4 or more workers during the calendar year.
The best part about the above rule(s) is the fact the 4 or more workers are not required to work at the same time or during the same week.

It is easy to panic about these rules because they are generally unanswerable from the outside looking in. Do not freak out. Many farms meet these rules.

In fact, I think every worker should assume the farm they worked at or with satisfied one of the above elements.

Farmer Workers Who Do Not Understand Unemployment Benefits

Very few workers know the payroll status of the farm that they work at. Instead, most workers are worried about whether they are getting paid and if their paycheck will bounce.

If you have read other posts, you know I dislike the workforce center.

On the other hand, I believe engaging the unemployment office to seek payroll verifications for covered agricultural workers is a necessary step in the unemployment application process.

Unemployment for Farmers

In Minnesota, unemployment for farmers and workers is a big deal because the growing season is short. Assuming staff members are ineligible is a horrible strategy.

Because the unemployment laws for agriculture support benefits and unclear at the sometime, I believe appealing these types of claims is even more significant.
May 22, 2017
Did Ransomware for Unemployment Just Get Real?

Ransomware for unemployment benefits sounds crazy, but lets assume the threats of computer viruses and ransomware this week are real.

Rhetorically speaking, what if benefits are impacted by a malware program? Even worse, what if we cannot file an appeal or request benefits? Lets develop a contingency plan supported by law.

Will Ransomware for Unemployment impact a Request?

As unlikely as it might be, I believe knowing there are different methods of requesting benefits can offer relief. A computer is not the only source for a weekly benefit request.

Did you know Minnesota supports a request by phone?

I encourage everybody to have this unemployment link printed out and on standby. Assuming applicants are prepared, I do not think ransomware will impact the request process for weekly UI benefits.

Ransomware for Unemployment Impacts Appeals

Somebody out there has already thought about using ransomware as a reason why they didn’t file an appeal properly. Otherwise, I am the only one. Although this defense probably won’t work, consider this.

Minnesota’s unemployment appeal process supports filing an appeal using other methods in addition to a computer. For confirmation, check out unemployment law 268.103, which outlines different methods for applicants to file appeals.

Unfortunately, the directions offered by the Work Force Center contradict the statute. If you read my take on the Work Force Center, then perhaps you already knew my position on their website.

Anyways, the point I am trying to make is this: an appeal for benefits is unlikely going to be impacted by ransomware for unemployment because of the Minnesota law referenced above. But, following the requirements within the statute are going to become critically important.

Ransomware Final Point

Nearly everybody seeking benefits is looking for work or jobs using a computer. Incase your computer falls apart down the road, consider this outline to hedge against computer glitches. And, be careful with your e-mail!

Despite these new stresses, I wish you the very best during your appeal process.

May 15, 2017
Time is Up and Still No Response
Getting no response from the unemployment law judge is as frustrating as it gets.

First, appeals are stressful. Second, the benefit is desperately needed.

The applicable rule for timeliness is Minn. Stat. 268.105. But, lets put the rules aside and simplify things.

Untrue Rumors about No Response
- No, a judge missing a deadline has little impact on the success of a claim.
- No, a judge missing a deadline does not mean applicants obtain a default victory. On the other hand, if an applicant misses a deadline, it can have a detrimental impact.
- No, asking for feedback on when a decision will be made does not turn a good case into a bad case.
What to Do when you get No Response from the Judge

There are a number of ways to solicit a response. This includes:
- Calling the Appeal Hotline
- Asking a State Representative to contact DEED
- Filing documents with a Court, and
- Sending a letter by mail asking for feedback on a decision date.
For cases still in the phone appeal or reconsideration process, sending a letter to the Chief Unemployment Law Judge and the Commissioner of DEED can move mountains!

How Long does it Take?

If you start asking friends, you will drive yourself crazy. Really, it depends on the week and month. In my experience, I have seen decisions rendered in days. Other times, I have seen cases get lost for months.

Over the last few years, I have seen a more efficient process and I am hopeful most folks will see a decision within a few weeks. In fact, sometimes my Clients receive a lump sum benefit payment before they see something in writing.

Again, as stressful as this process can be, patience is key.

On the other hand, applicants should absolutely knock on doors, make phone calls and send letters to assure their case is still moving forward.

Finally, stay positive.
May 12, 2017