Homeless Worker Prevails Over Effort to Block UI

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By Mark Wolski

May 9 — A former security guard can collect unemployment benefits because she never quit her job but instead asked for time off while she resolved her family's homelessness, the Minnesota Court of Appeals has ruled.

Nita Posey's text messages to both her employer, Securitas Security Services USA Inc., and its client, U.S. Bank, indicated her desire to return to her position once her family crisis had passed, the court said. The decision to end her employment came from her employer, the court found.

Jeffrey M. Markowitz, Posey's attorney, told Bloomberg BNA May 9 that the ruling may not be groundbreaking for unemployment benefit cases, but it is important for another reason: The court recognized that an employer that doesn't object to a worker's request for time off can't use that request as a notice that the worker is quitting.

The ruling should allow Posey to claim benefits unless Securitas and the state Department of Employment and Economic Development ask the Minnesota Supreme Court to review the case, Markowitz said.

Family Crisis Took Priority

Posey had been working for Securitas for about six months in 2015 when she and her family were evicted from their home. She called and wrote text messages to Securitas to say she would be absent from work.

An official from U.S. Bank, Posey's assigned workplace, later called her and said she was expected to meet attendance requirements.

While Posey said she would meet those requirements, she called and texted Securitas and U.S. Bank the next day to tell them that she would be absent again because she was overwhelmed by her housing situation and her children's needs. Her messages indicated she would contact both once her situation had calmed down.

Days later, Posey received notice from Securitas that she had quit her job. She was told to return her uniforms and access badges.

DEED originally held that Posey was discharged for absenteeism, which amounted to misconduct. However, a state unemployment law judge later held that she quit her Securitas job and therefore was ineligible for benefits.

Did Worker Choose to Quit?

The appellate court wrote that unemployment benefit decisions on quitting are guided by Shanahan v. Dist. Mem'l Hosp., 495 N.W. 2d 894 (Minn. Ct. App. 1993). The court in Shanahan said the test for determining if an employee has voluntarily quit is whether the worker “directly or indirectly exercises a free-will choice to leave the employment.”

DEED said Posey had acknowledged quitting her work for U.S. Bank, but Posey denied leaving her job, the court said. She said she told both Securitas and U.S. Bank that she needed time to address her family crisis. Further, Posey was not employed by U.S. Bank, the court said.

There was no evidence that Securitas ever told Posey anything that would lead her to believe that leaving the U.S. Bank site would result in her ending her employment, the court said in an opinion written by Judge R.A. (Jim) Randall and joined by Judges John R. Rodenberg and Carol Hooten.

There was also no evidence that Securitas ever told Posey that leaving a client for personal reasons would be seen as quitting the company, it said.

Markowitz said the ruling did not come as a surprise. The court did the right thing by examining the record and finding that a worker who had fallen on hard times had given appropriate notice that she needed time off to address her personal situation, he said.

Markowitz is with the firm of Arthur, Chapman, Kettering, Smetak & Pikala P.A.

Lee B. Nelson represented DEED. A department spokeswoman said the agency is still reviewing the ruling. No attorney information was available for Securitas.

To contact the reporter on this story: Mark Wolski in St. Paul, Minn., at mwolski@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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