Employment Misconduct Is a Closed Statutory Definition — and the Legislature Narrowed It on October 1, 2019, After Every Supreme Court Decision This Page Cites

One sentence, and it is shorter than it used to be

Minnesota does not let an unemployment law judge decide what “misconduct” means. The Legislature wrote the definition, wrote a list of things that are not within it, and then said in the same subdivision that nothing else counts. Section 268.095, subd. 6(a), as posted in the 2025 Minnesota Statutes:

Employment misconduct means any intentional, negligent, or indifferent conduct, on the job or off the job, that is a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee.

That sentence is newer than most of the writing about it. Until 2019 the subdivision reached conduct “on the job or off the job that displays clearly: (1) a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee; or (2) a substantial lack of concern for the employment.” Laws 2019, 1st Spec. Sess., ch. 7, art. 7, § 9, struck the words “displays clearly,” struck the clause numbering, and struck clause (2) in its entirety. Section 11 of the same article supplies the date: “Unless otherwise specified, this article is effective October 1, 2019.”

Two things follow. An employer can no longer reach a discharge through the “substantial lack of concern” route at all — that prong is gone from the statute. And every Minnesota Supreme Court decision quoted on this page construed a sentence that read differently from the one now in force. Each is identified below with the version it applied.

The Legislature’s other structural move was earlier. Laws 2009, ch. 15, § 9, took a subdivision written as a run of prose and rebuilt it: paragraph (a) became the definition, paragraph (b) became a numbered list of exclusions, and a new paragraph (d) was added on single incidents. That act carries its own effective-date clause — “This section is effective for determinations issued on or after August 2, 2009.” The same act removed “a single incident that does not have a significant adverse impact on the employer” from the list of things that are not misconduct, and replaced it with paragraph (d). That is the opposite of what most people assume happened.

Ten exclusions, quoted in full

Subdivision 6(b) opens with “Regardless of paragraph (a), the following is not employment misconduct,” and then:

(1) conduct that was a consequence of the applicant’s mental illness or impairment;

(2) conduct that was a consequence of the applicant’s inefficiency or inadvertence;

(3) simple unsatisfactory conduct;

(4) conduct an average reasonable employee would have engaged in under the circumstances;

(5) conduct that was a consequence of the applicant’s inability or incapacity;

(6) good faith errors in judgment if judgment was required;

(7) absence because of illness or injury of the applicant, with proper notice to the employer;

(8) absence, with proper notice to the employer, in order to provide necessary care because of the illness, injury, or disability of an immediate family member of the applicant;

(9) conduct that was a consequence of the applicant’s substance use disorder, unless the applicant was previously diagnosed with substance use disorder or had treatment for substance use disorder, and since that diagnosis or treatment has failed to make consistent efforts to control the substance use disorder; or

(10) conduct that was a consequence of the applicant, or an immediate family member of the applicant, being a victim of domestic abuse, sexual assault, or harassment or stalking. For the purposes of this subdivision, “domestic abuse,” “sexual assault,” and “harassment” or “stalking” have the meanings given them in subdivision 1.

Read the grammar of the list rather than its subject matter. Five of the ten clauses — (1), (2), (5), (9), and (10) — turn on causation in those words: the conduct must have been “a consequence of” something the clause names. Two more are causal in different words: clauses (7) and (8) reach absence “because of” illness or injury. Clause (4) asks about the average reasonable employee rather than about the applicant at all, and clauses (3) and (6) turn on the character of the conduct rather than on its cause. Clauses (7) and (8) are the two that carry a condition the applicant has to have satisfied in advance: “with proper notice to the employer.” Neither clause says the notice must be written, and neither prescribes a form. The subdivision is silent on that, and this page does not fill the silence.

One clause is clawed back by the next paragraph. Subdivision 6(c):

Regardless of paragraph (b), clause (9), conduct in violation of sections 169A.20, 169A.31, 169A.50 to 169A.53, or 171.177 that adversely affects the employment is employment misconduct.

Those are Minnesota’s impaired-driving sections. Clause (9) protects conduct that was a consequence of a substance use disorder; paragraph (c) takes the impaired-driving conduct back out, on the single condition that it “adversely affects the employment.”

The single-incident paragraph is a thumb on the scale, not a shield

Schmidgall is worth reading for what it actually said, because it is the origin of that parenthetical. At 806: “A single incident can constitute misconduct when an employee deliberately chooses a course of conduct that is adverse to the employer.” Earlier, at 804: “As a general rule, refusing to abide by an employer’s reasonable policies and requests amounts to disqualifying misconduct.” Schmidgall construed the 2000 version of subdivision 6(a), which defined misconduct as “any intentional conduct … that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee’s duties and obligations to the employer.” Id. at 804. That is not the current sentence. The reason Schmidgall still appears in this discussion is that the Supreme Court itself cited it, at 806, in 2016.

“Exclusive” is a real word, and it cuts both ways

Subdivision 6(e) is one sentence: “The definition of employment misconduct provided by this subdivision is exclusive and no other definition applies.”

The majority also drew a limit around its own holding, in a footnote: “our decision does not exclude the use of the general concept of ‘materiality’ as a factor in determining whether an employee’s conduct was a ‘serious violation’ of the standards of behavior that an employer could reasonably expect,” because “[t]he common meaning of ‘material,’ like ‘serious,’ is synonymous with important.” Wilson, 888 N.W.2d at 459 n.9. What the court rejected was the but-for test the court of appeals had applied, not the idea that a misrepresentation’s importance matters.

Wilson was not unanimous. Chief Justice Gildea wrote for the court; Justice Chutich dissented, joined by Justices Lillehaug and Hudson. The dissent agreed with the majority “that the statutory definition of employment misconduct is exclusive and must be applied here.” Wilson, 888 N.W.2d at 464 (Chutich, J., dissenting). The disagreement was about applying it. Wilson quoted the pre-2019 text of subdivision 6(a), including “displays clearly,” at 457.

The same opinion answers a question the rest of chapter 268 raises. Section 268.031, subd. 2, directs that the law “is remedial in nature and must be applied in favor of awarding unemployment benefits” and that any provision precluding benefits “must be narrowly construed.” At 460, the court held:

This statutory construction directive, however, is not applicable if, as is the case here, the statute is unambiguous.

And it named the reach of that conclusion: “The statutory definition of ‘employment misconduct’ is not ambiguous and neither is the exclusivity provision. Accordingly, the construction directive on which Wilson and the dissent rely is inapplicable.” Wilson, 888 N.W.2d at 460. The remedial directive is a tool for resolving ambiguity, not a general tilt. Section 268.069, subd. 3, points the same way from the other side: “There is no equitable or common law denial or allowance of unemployment benefits.”

What the “serious violation” test asks

The words “serious violation of the standards of behavior the employer has the right to reasonably expect of the employee” survived the 2019 amendment unchanged. Two Supreme Court decisions describe what they do.

The question is objective. In Jenkins v. American Express Financial Corp., 721 N.W.2d 286, 290 (Minn. 2006), the court took up the first prong of the then-current definition and said: “This definition is an objective determination: was the employer’s expectation for the employee reasonable under the circumstances?” Jenkins construed the 2003 version, which used “evinces a serious violation” rather than “is a serious violation,” id., and it drew a dissent. On the facts, an employee jailed after a criminal conviction who had made “diligent efforts to report to work,” including securing the employer’s verbal assurance of cooperation with a work-release program, was held not to have been discharged for misconduct. Jenkins, 721 N.W.2d at 292–93.

The question is about the employee’s conduct, not the employer’s process. Stagg v. Vintage Place Inc., 796 N.W.2d 312, 316 (Minn. 2011), is the case that closes the most common argument on the applicant’s side — that the employer skipped a step in its own progressive-discipline policy:

Thus, the focus of the inquiry is the employee’s conduct, not that of the employer.

And, in the next paragraph: “But, in any event, whether an employer follows the procedures in its employee manual says nothing about whether the employee has violated the employer’s standards of behavior.” Id. Handbook-breach claims “are necessarily brought in a different forum.” Id. The court overruled a contrary court of appeals decision in a footnote. Stagg, 796 N.W.2d at 317 n.1. Stagg applied the pre-2019 two-clause definition, which it quoted at 314.

Stagg also restated the narrow-construction rule at 315 — “we will narrowly construe the disqualification provisions of the statute in light of their remedial nature, as well as the policy that unemployment compensation is paid only to those persons ‘unemployed through no fault of their own’” (quoting Valenty v. Med. Concepts Dev., Inc., 503 N.W.2d 131, 134 (Minn. 1993)) — five years before Wilson held that the codified version of that directive does not operate on unambiguous text. Both statements are in the reports. This page does not reconcile them.

Aggravated employment misconduct is a second, harsher door

Subdivision 4 names exactly two routes to a discharge denial: employment misconduct under subdivision 6, or aggravated employment misconduct under subdivision 6a. The second is defined in subdivision 6a(a):

The commission of any act, on the job or off the job, that would amount to a gross misdemeanor or felony is aggravated employment misconduct if the act had a significant adverse effect on the employment.

A criminal charge or conviction is not necessary to determine aggravated employment misconduct under this paragraph. If an applicant is convicted of a gross misdemeanor or felony, the applicant is presumed to have committed the act.

Paragraph (b) adds a category tied to a specific workplace: “For an employee of a facility as defined in section 626.5572, aggravated employment misconduct includes an act of patient or resident abuse, financial exploitation, or recurring or serious neglect, as defined in section 626.5572 and applicable rules.” Paragraph (c) closes this definition too: it “is exclusive and no other definition applies.”

The consequence is different in kind, not just in degree. Ordinary ineligibility under subdivision 10(a) runs until the applicant has earned enough in subsequent covered employment to requalify. Subdivision 10(c) adds, for aggravated employment misconduct only, that “wage credits from that employment are canceled and cannot be used for purposes of a benefit account under section 268.07, subdivision 2.” The earnings themselves stop counting.

Two limits that sit outside subdivision 6

Nothing you do after the separation counts. Subdivision 7: “An applicant may not be held ineligible for unemployment benefits under this section for any acts or omissions occurring after the applicant’s separation from employment with the employer. A layoff because of lack of work is considered a separation from employment.”

Whether it was a discharge at all is a separate question. Subdivision 6 only matters once someone has decided the employment ended at the employer’s decision. Subdivision 5 defines discharge, subdivision 2 defines quit, and each rules out its constructive version. Those mechanics, the ten exceptions that preserve eligibility after a quit, and the three 45-calendar-day clocks are covered in the guides on the unemployment hearing that decides the case and quitting and still collecting. This page does not repeat them.

What this page does not do

This page reads a subdivision. It does not decide whether what happened at your job was a serious violation of a standard your employer had a right to reasonably expect, which is the whole contest and is decided on a record built at one telephone hearing. Two things are general. The first is that the fight almost always lives inside paragraph (b) — which clause, and whether the conduct “was a consequence of” what the clause names. The second is that the sentence in paragraph (a) is younger than the case law about it, so any source that quotes “displays clearly” or “a substantial lack of concern for the employment” as current law is quoting a statute the Legislature amended on October 1, 2019.

Related: was the firing itself lawful, the wages you were already owed, and the termination-reason letter.