Employee mistake not enough to lose unemployment

Being fired for making an inadvertent mistake at work is not a reason for losing the right to unemployment benefits, the Minnesota Court of Appeals ruled today.

The court settled the case of Joan Dourney, who was fired from Panino’s Restaurant in Shoreview, where she’d worked for 11 years, because she served alcohol to a minor (see update below). Dourney said she thought a woman, who was accompanying a man she knew was over 21, was old enough to drink.

Her boss ordered her to card the woman, Dourney removed the drink, and then she was fired. But the restaurant objected to her unemployment claim , saying she was guilty of employment misconduct and, therefore, ineligible for unemployment benefits.It appealed the unemployment claim that was approved by the state.

Today, the court said “even if a reasonable person would have carded the customer whom Dourney failed to card and Dourney’s conduct could be considered negligent, (state law) expressly provides that inadvertence is not employment misconduct… Because Dourney’s forgetting to card the customer was conduct marked by unintentional lack of care, the conduct was inadvertence.” (Decision here)

The case, however, shows the extent to which a worker occasionally has to go to get unemployment

Update 10:29 a.m. 4/11 – The Department of Employment and Economic Development disputes two items in this post. Lee Nelson, an attorney for the department writes.


(1) The applicant, Joan Dourney, did not serve alcohol to a minor. A Department Unemployment Law Judge found, adn the Court of Appeals agreed on page six of its decision, that “We have no evidence that the individual was actually too young [to drink].” This would have been a very different case indeed had Dourney served a minor, and certainly a more sensational one, particular in light of the recent “Wally the Beer Man” verdict. But by all accounts the woman that Dourney served was at least 23 years old, and Dourney broke no law by serving her.

The “Wally the Beer Man” story is irrelevant to the context of the case regardless of whether Ms. Dourney did or did not serve a minor. The assertion that the woman was a minor was based on the reading that the server removed the drinks. I neglected to note that it was because the woman could not produce identification.


(2) Dourney was not involved in the case pending before the Court of Appeals. While Dourney was a seconday respondent, the Department was the primary responding party to the case under Minn. State. 268.1056 subd. 7(e), as unemployment benefits are paid from state funds. The Department drafted the brief defending Dourney’s receipts of benefits, and argued the case in front of the Court of Appeals. Dourney played no role at all in this process. The “extent” wo which Dourney had to go to get benefits was actually quite minimal; a year ago she filled out the questionnaires that the Department sent to her, and participated in a brief telephone hearing before an Unemployment Law Judge.

The characterization of the difficulty an employee often has to go to get unemployment is based on the assertions of the establishment, not the work the Department has to go to at the Court of Appeals. The initial post stated, in fact, that the department approved her unemployment claim.

  • JP

    I like that: “…the extent to which a worker occasionally has to go to get unemployment.”

    Indeed. I’ve heard managers BRAG about how they caught people stealing in elaborate traps so they didn’t have to pay unemployment. Also, the unemployment insurance companies avoid paying claims by using the same sort of legal tactics that … well, insurance companies use.

    This is an imprtant issue in and of itself, worthy of study. Withoholding legitimate unemployment benefits. I’m not even sure that the error would have been cause for firing if it was a limited, one-time situation.

  • Jennifer

    od points, JP. It’s a screwed-up system favoring employers. If you have to fight for unemployment, it can take a year or more to go through the Appeals Court stage, so you have to be independently wealthy or re-employed (as if!) right away, in which case you don’t need benefits anyway.

    You can have an attorney to help you with the appeal process, but how many unemployed regular Janes and Joes can afford an attorney when they’re unemployed? Meanwhile, the employer has an attorney whether the ex-employee does or not, giving them a clear advantage. The ex-employee is also put on the defensive during the whole process, which is usually a losing position (hearing officers will start hearings with the employer telling their story first, for example).

    Yes, I went through it once. It was through this process that I learned that our court system does not always offer justice. Oh, and I almost forgot one of the worst things: The Appeals Court will help you through the steps of that end of the process, but they never tell you that whether you win or lose the appeal (one clerk told me that almost no employees ever win), your case will be on the internet for anyone to see, forever tainting your job prospects. That was a new thing back when I went through this, and I knew it would be part of the public record (like, you go down to the courthouse to search for it), but I did NOT know that it was going to be online.

  • Mary Nienaber

    I’d like to bring another perspective, If it was a one time event I agree that firing the employee is not reasonable nor good for the business, BUT, what if she had forgotten to card people regularly, putting the business at risk? The article doesn’t include the evidence tha may have led up to this event. What I have trouble with case law that could affect future decisions on this basis. Haven’t you found that there is a difference in intent behind forgetting? Is forgetting always without intent? Do you ever think your teenager has inadvertently forgotten to unload the dishwasher or your spouse has forgotten to do some other unsavory chore? As one who has been inovled in these cases for many years, for the employer, without an attorney, I can tell you the decisions do not always favor the employer. Misconduct is ill-defined by the law and is all over the map in terms of application. It’s a crap shoot.