In re the Marriage of: Cheryl L. Gass, petitioner, Respondent, vs. Ricky G. Gass, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C8-98-539

William E. Moseng,
Relator,

vs.

Heartland Machine & Tool, Inc.,
Respondent,

Commissioner of Economic Security,
Respondent.

Filed September 22, 1998
Affirmed
Amundson, Judge

Commissioner of Economic Security
File No. 3982 UC 97

Criston L. Drake, 324 South Fifth Street, Suite A, Brainerd, MN 56401 (for relator)

Richard Kreutzfeldt, Brainerd National Bank Building, 1100 Highway 210 West, Brainerd, MN 56401 (for respondent employer)

Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)

Considered and decided by Amundson, Presiding Judge, Kalitowski, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

AMUNDSON, Judge

Relator employee argues that the commissioner's representative improperly found him ineligible to receive reemployment benefits based on (1) his unavailability to work and (2) his incarceration. Relator argues that he was available to work and that his incarceration is irrelevant to his eligibility. We affirm.

FACTS

Relator William E. Moseng, a machinist for the last 19 years, worked for respondent Heartland Machine & Tool, Inc. (Heartland) since September 1995. On August 27, 1996, Moseng was arrested and later pleaded guilty to felony criminal sexual conduct. On January 7, 1997, he began his one-year sentence. Because Moseng was eligible for Huber work-release privileges, which allow for the continuation of employment while incarcerated, he was able to continue his work at Heartland until he was laid off for work shortage on January 29, 1997.

On February 2, 1997, Moseng established a reemployment insurance account. He was unable to find work, including at Heartland, during his incarceration. Moseng was found eligible to receive reemployment benefits, a determination Heartland appealed. A reemployment insurance judge found Moseng ineligible for benefits from February 2 to March 29, eligible for benefits from March 30 to June 30, and ineligible from July 1 to July 15. Heartland again appealed. A representative of the respondent Commissioner of Economic Security (commissioner's representative) modified the decision, finding that Moseng was ineligible for benefits from February 2 through June 30 due to his unavailability to work and from July 1 throughout the remainder of his incarceration due to a new statutory provision rendering incarcerated individuals ineligible for benefits. This appeal followed.

D E C I S I O N

Whether an employee is eligible to receive reemployment insurance benefits is a determination that we will not overturn unless it is not reasonably supported by the evidence. Decker v. City Pages, Inc., 540 N.W.2d 544, 548 (Minn. App. 1995). The employee has the burden of proving his or her eligibility for benefits. Id. at 547.

I. Unavailability for Work

Moseng challenges the commissioner's representative's determination that he was unavailable for work and therefore was not eligible for benefits from February 2, 1997, through June 30, 1997. Minnesota law states:

A claimant shall be eligible to receive benefits with respect to any week of unemployment only if the commissioner finds that the claimant:
(3) was able to work and was available for work, and was actively seeking work.

Minn. Stat. § 268.08, subd. 1 (3) (1996).

Moseng argues that he was indeed actively seeking work: he sought work with Heartland and sent his resume to other potential employers. However, Moseng himself testified that most machinist positions are found through in-person application. Because of his incarceration, Moseng could not apply in person for jobs. Further, an officer of Heartland testified that Moseng would have difficulty finding work when potential employers learned that he was incarcerated as a sexual criminal. The commissioner's representative made a factual determination that Moseng's employment search did not meet the requirements of the statute.

Moseng contends that he was available for work through work release. He was working while incarcerated through his Huber work-release privileges when he was laid off from Heartland. Huber work release allows certain incarcerated individuals to continue their employment while serving their sentence. Minn. Stat. § 631.425, subd. 3 (1996).

Regardless of Moseng's possible availability for new employment through Huber work release, Moseng was unavailable for work from February 2 to June 30. Availability for work is defined as applying only when a claimant/employee is

ready and willing to accept full-time suitable work. There must be no restrictions, either self-imposed or created by circumstances, which prevent accepting full-time work. A restriction does not prevent accepting full-time work if there are favorable prospects for obtaining full-time work within the restrictions within a reasonable period of time.

Minn. R. 3305.0500, subpt. 1 (1995). Moseng's incarceration, which not only limited his hours and the geographical location of his work (due to restrictions of the work-release privileges), but which also disabled him from applying in person for jobs, limited him to having only a post office box as an address (which he only checked once a week) and disallowed him a personal telephone number where he could be reached, damaged the efficacy of his job search. Because of the Huber work release limitations, the limitations inherent in incarceration, and the statutory definition of availability, the commissioner's representative's determination that Moseng was unavailable for work is reasonably supported by the evidence.

II. Incarceration

The commissioner's representative found that Moseng was ineligible for reemployment benefits from July 1 through the time he continued to be incarcerated, due to incarceration. Moseng argues that because he was eligible for work release, incarceration does not effect his availability for work. Not only do we reject this argument (see discussion above) but more importantly, the statute was amended effective July 1, 1997, rendering incarcerated claimants ineligible to receive reemployment benefits. Minn. Stat. § 268.08 subd. 2 (3) (Supp. 1997).

Affirmed.