June 2013

By: James B. Sherman, Esq.

The Minnesota Court of Appeals recently upheld an unemployment law judge’s decision that an employee terminated over a physical altercation with a coworker, did not engage in “misconduct” for purposes of the unemployment compensation statutes. As a result the employee in Typpo v. Goldstein Law Office, Inc. remained eligible to receive unemployment benefits.

The case arose out of the employer’s implementation of a new office policy requiring that all mail was to go directly to the law firm’s principle, Mr. Goldstein. On the day in question, one of Ms. Typpo’s co-workers retrieved the mail in order to bring it to Mr. Goldstein. Ms. Typpo, expecting a magazine, attempted to take the mail from the co-worker, who reminded Ms. Typpo of the new policy and headed for Mr. Goldstein’s office. The two struggled over the mail for approximately 15 seconds before Ms. Typpo relented. Goldstein Law Office terminated Ms. Typpo’s employment for not only violating the mail policy, but instigating a physical altercation with a co-worker.

On appeal the court decided that the behavior described above did not constitute “misconduct,” but was instead “simple unsatisfactory conduct.” The court based its decision on its findings that: (1) the altercation only lasted approximately 15 seconds; (2) Typpo’s motivations were not to harm her co-worker, but were instead to retrieve her magazine; and (3) Typpo was not attempting to circumvent the mail policy’s underlying purpose.

We suspect that most employers would disagree with this ruling, as do we. Employers, who are subject to legal claims for failing to maintain a safe work environment (under OSHA) or for “negligent supervision” when employees injure others, generally have adopted “zero tolerance” policies toward fighting, threatening, or physical aggression of any sort in the workplace. The rationale the court put forth in this decision is, in our humble opinion, just plain poor jurisprudence. What difference does it make how long the altercation lasted? Fifteen seconds is plenty of time for someone to be injured, in some cases severely; after all, it takes just one punch, one elbow, etc. for someone to get seriously hurt. Also, why do the claimant’s motives for her actions matter? Once she resorted to physically wrestling a magazine from a co-worker’s hands it smacks of misconduct even if she did it intending to share a recipe from the magazine with her colleague. Clearly had the co-worker been injured as a result of this incident the Administrative Law Judge (ALJ) and the court would have had good reason for reaching a different conclusion. However, should someone actually have to suffer an injury before physical action toward another is deemed misconduct? Lastly, we find it troubling that the court effectively inserted itself into the employer’s shoes in concluding that Ms. Typpo was not trying to circumvent the new office policy when she tried to snatch a magazine from the mail before it went to Mr. Goldstein.

There is an old saying in the legal profession, that bad facts make bad law. In this case it looks like a case of bad behavior that is making bad legal precedent for employers.