Legal Lode: Good, Bad or Indifferential

Disobedient driver dumped and defeated.

Just how badly must an employee have behaved to lose eligibility for unemployment benefits after he’s fired? A Minnesota appeals court seemingly had no trouble upholding a denial of benefits to a wayward trash truck driver with a lousy attitude.

Anthony Velde had been employed by Randy’s Sanitation for 13 years when he was discharged for misconduct. The episode began on February 21, 2011, when the streets were snow-packed and slippery. Velde engaged the differential locks on his truck to get better traction. Company policy allows drivers to do so when going from stop to stop at low speeds. However, they are are forbidden to lock the differentials on a sustained straightaway or at relatively high speeds because the trucks can’t maneuver quickly in an emergency. Nevertheless, Velde decided to drive on the highway with the locks engaged because, as he saw it, the conditions were poor.

When he arrived back at base, he told a co-worker he would not be showing up the next day, despite knowing that extra trucks would be needed to help with the snow. Sure enough, on February 22 he phoned in, telling Curt Stubbs, his supervisor, that he did not feel well and that he “[didn’t] feel like dealing with it.” When he returned to work a day later, the operations manager and Stubbs questioned him about engaging the differentials on the highway and, having heard from the co-worker, about his reported sickness. Velde responded that he had been joking to the co-worker, and insisted he really was ill. (Perhaps he was just channeling Adele: Just ‘cause I said it, don’t mean that I meant it, just cause you heard it.)

As the questions continued, Velde became annoyed, raised his hand as if to signal “stop,” and told Stubbs, “I’m done talking to you.”

Initially, the manager suspended Velde for “dishonesty, unexcused absence, incorrect operational usage of equipment, [and] compromising safety,” but he later decided to fire him. After the state employment department denied Velde unemployment benefits, he asked for a hearing. Based on testimony about the February 21 and 22 events, together with Velde’s insubordination by refusing to talk with his bosses, an administrative judge found job-related misconduct and rejected his claim.

Minnesota law defines employment misconduct as “intentional, negligent or indifferent conduct, on the job or off the job that displays . . . (1) a serious violation of the standards of [employee] behavior the employer has a right to reasonably expect or (2) a substantial lack of concern for the employment.”

On appeal, Velde contended that the hearing judge improperly considered his insubordination, but a three-judge panel disagreed. A worker’s “behavior as a whole is relevant to . . . eligibility for unemployment benefits,” said the court. Nor did the court find he was truthful about reporting himself too sick to work. “[His] alleged reaction to medication was only a false pretext for inappropriately calling in sick to avoid working on a likely difficult shift due to poor weather conditions,” said the court. Indeed, he had already incriminated himself by telling a co-worker about his impending “sickness.”

With regard to the charge of misusing equipment, the court quoted approvingly from the hearing record: “[Velde] violated his employer’s reasonable expectations when he drove with the differentials engaged on the highway . . . [creating] a serious safety hazard and safety violation that exposed the employer to legal liability risks.”

Incidentally, Velde also argued that his wife was wrongfully prevented from asking questions during the hearing. The judge had only allowed her to “add to the conversation” with relevant, first-hand information. His contention, however, the appellate panel declined to . . . espouse.

[Velde v. Randy’s Sanitation, Inc., No. A11-1113, Minn.App., Apr. 23, 2012]

Barry Shanoff is a Rockville, Md., attorney and general counsel of the Solid Waste Association of North America.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].

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