A18-2148 A18-2149

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-2147
A18-2148
A18-2149

In the Matter of:
Dennis Arel, Relator.

Filed August 12, 2019
Affirmed
Slieter, Judge

Department of Employment and Economic Development
File Nos. 36620658, 36625160, 36625163

Jasper Berg, IAJ Law, LLC, Edina, Minnesota (for relator)

Anne B. Froelich, Department of Employment and Economic Development, St. Paul,
Minnesota (for respondent department)

Considered and decided by Slieter, Presiding Judge; Halbrooks, Judge; and
Connolly, Judge.
U N P U B L I S H E D O P I N I O N
SLIETER, Judge
Relator Dennis Arel challenges the decisions made by an unemployment-law judge
(ULJ) that he was ineligible for unemployment benefits because he was not available for
and actively seeking suitable employment. Relator argues that (1) he was actively seeking
suitable employment, (2) the ULJ’s decisions addressed a different issue than was noticed
for the hearing , and (3) the ULJ acted as an improper material witness by conducting

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internet searches for available jobs during the hearing. The ULJ properly found the relator
was not ready, willing, and able to accept suitable employment; the relator was aware of
what the issue was to be considered at the hearing; and the ULJ properly considered the
labor market in reaching a decision. For these reasons, we affirm.
FACTS
Relator has worked at Arel Trucking fo r the past 30 years. He works as a truck
driver, hauling gravel, asphalt, and rock in a dump truck. This work is seasonal, he usually
begins work for the year in April and ends in November, and he makes approximately $30
per hour. On January 1, 201 7, relator established an unemployment-insurance account
after he was laid off due to lack of work. He established another account on January 7,
2018, again because of unemployment due to “lack of work.” Relator received
unemployment benefits through these accounts.
On July 24, 2018, the department of employment and economic development
(DEED) issued determinations of ineligibility for three time periods that relator received
benefits. The first was from January 1, 2017 through April 15, 2017. This resulted in an
overpayment of benefits of $6,608. The second time period was from November 19, 2017
through January 6, 2018. This resulted in an overpayment of benefits of $3,304. The last
period was from January 7, 2018 through April 21, 2018. This resulted in an overpayment
of benefits of $5,811. The reason stated on all three ineligibility determinations was that
Arel “failed to conduct an active search for suitable employment.”
On July 30, 2018, relator appealed these determinations , which a ll were
consolidated for hearing and assigned to one ULJ. The ULJ held a de novo evidentiary

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hearing on August 16, 2018. Relator was present and testified on his own behalf. The ULJ
explained that the only issue to be decided was whether relator was actively seeking
suitable employment during the three time periods.
Upon being questioned by the ULJ, relator testified that he established the
unemployment accounts when he was laid off from Arel Trucking. His job title when he
was laid off was “truck driver.” He worked f ull time for $31 per hour. Relator testified
that between January 1 , 2017 and April 15, 2017, he looked for work by searching
Craigslist and looking in the newspaper. But he explained that “[i]t’s all seasonal work,
there’s nothing out there.” Relator testified that he was looking for truck driving positions
that paid around $30 an hour, but that he only saw ones that paid $18 an hour.
The ULJ asked relator if he had “any objection to [the ULJ] doing a new search
about truck driving jobs?” and relator re plied “[n]o.” The ULJ went online and looked at
the American Trucking Associations website, which stated that the trucking industry is
“facing a shortage of drivers.” Relator testified that he was not aware of any shortage.
Relator continued to testify that, for the time periods at issue, he would look for work on
Craigslist and in the newspaper but was unable to find any full -time employment. He
maintained that “[t]here was no trucking work” during these periods. At one point during
the hearing, the ULJ asked if relator had any objection to the ULJ going on Indeed.com
and trying to “see what it looks like?” Relator stated that he had no ob jection. The ULJ
entered a job search for “truck driver” in Minneapolis, Minnesota and got 1,974 results.
Relator testified that he “never heard of this website.” The ULJ decided to continue the
hearing to do more research into what was available during these times for work, and kept

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the record open to allow relator time to review additional evidence, which included labor
market data. Relator did not respond to the ULJ’s labor market information, nor did he
add any additional evidence of his own.
On September 10, 2018, the ULJ issued a findings of fact and decision for each time
period. The ULJ found that “ [t]he testimony of [relator] was not credible, because it was
contradictory and not plausible . . . . It is not plausible that the employment conditi ons in
Minnesota were such that no full-time work existed in the winters of 2017 and 2018.” The
ULJ held that “the only logical conclusion is that [relator] was not interested in obtaining
other work” during the three time periods. On a request for recon sideration, the ULJ
affirmed its decision on December 4, 2018.
Relator appeals, by writ of certiorari, the three separate determinations by the ULJ.
They have been consolidated on appeal.
D E C I S I O N
When reviewing the ULJ’s decision, this court may a ffirm, remand for further
proceedings, or it may reverse or modify the decision if the substantial rights of the
petitioner may have been prejudiced because the findings, inferences, conclusion, or
decision were: “(1) in violation of constitutional provisi ons; (2) in excess of the statutory
authority or jurisdiction of the department; (3) made upon unlawful procedure; (4) affected
by other error of law; (5) unsupported by substantial evidence in view of the entire record
as submitted; or (6) arbitrary or capricious.” Minn. Stat. § 268.105, subd. 7(d) (2018).
“Whether [a relator] was properly disqualified from receiving unemployment
compensation is a mixed question of law and fact.” Posey v. Securitas Sec. Servs.

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USA, Inc., 879 N.W.2d 662, 664 (Minn. App. 2016) (quotation omitted). This court
reviews the ULJ’s factual findings in the light most favorable to the decision, and we “will
not disturb those findings as long as there is evidence in the record that reasonably tends
to sustain them.” Wilson v. Mortg. Res. Ctr. , Inc., 888 N.W.2d 452, 460 (Minn. 2016)
(quotation omitted). “Credibility determinations are the exclusive province of the ULJ and
will not be disturbed on appeal.” Bangtson v. Allina Med. Grp. , 766 N.W.2d 3 28, 332
(Minn. App. 2009) (quotation omitted). “The determination that an applicant is ineligible
for unemployment benefits based on the facts of the case is reviewed de novo.” Posey, 879
N.W.2d at 664.
I. Substantial evidence su pports the ULJ’s finding tha t relator was not actively
seeking or available for suitable employment.

Relator argues that the ULJ erred in determining that he was ineligible for
unemployment benefits because he was not actively seeking employment. We disagree.
Unemployment benefits are intended to assist those who are discharged through no
fault of their own. Minn. Stat. § 268.03, subd. 1 (2018). An applicant for unemployment
benefits must meet a number of eligibility requirements, including that the applicant was
available for and actively seeking suitable employment. Minn. Stat. § 268.085, subd. 1
(2018).
Whether an applicant for unemployment benefits is available for suitable
employment is a question of fact. See Semanko v. Dep’t of Emp’t Servs., 244 N.W.2d 663,
665 (Minn. 1976). We review that finding in the light most favorable to the decision and

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will not disturb the finding when the evidence substantially sustains it. Wiley v. Robert
Half Int’l, 834 N.W.2d 567, 569 (Minn. App. 2013).
An applicant is not eligible for unemployment benefits for any week if the applicant
was not “available for suitable employment” during that week. See Minn. Stat. § 268.085,
subd. 1(4) (2018).
“Available for suitable employment” means an applicant is
ready, willing, and able to accept suitable employment. The
attachment to the work force must be genuine. An applicant
may restrict availability to suitable employment, but there must
be no other restrictions, either self -imposed or created by
circumstances, temporary or permanent, that prevent accepting
suitable employment.

Id., subd. 15(a) (2018). “An applicant who has restrictions on the hours of the day or days
of the week that the applicant can or will work, that are not normal for the applicant’s usual
occupation or other suitable employment, is not ‘available for suitable employment.’” Id.,
subd. 15(d) (2018). “An applicant must be available for daytime employment, if suitable
employment is performed during the daytime, even though the applicant previously worked
the night shift.” Id.
“Suitable employment means employment in the applicant’s labor market area that
is reasonably related to the applicant’s qualifications.” Minn. Stat. § 268.035, subd. 23a(a)
(2018) (emphasis added) . “In determining whe ther any employment is suitable for an
applicant, the degree of risk involved to the health and safety, physical fitness, prior
training, experience, length of unemployment, prospects for securing employment in the
applicant’s customary occupation, and the distance of the employment from the applicant’s
residence is considered.” Id. Furthermore, “ [i]f reasonable prospects of suitable

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employment in the applicant’s usual or customary occupation do not exist, the applicant must
actively seek other suitable e mployment to be ‘actively seeking suitable employment.’ This
applies to an applicant who is seasonally unemployed.” Minn. Stat. § 268.085, subd. 16(c)
(2018).
The ULJ found that:
[Relator] browsed Craigslist and newspaper[s] for gravel truck
driving positions. He did not apply for any jobs, because he
was only interested in returning to work with Arel Trucking in
the spring. Full-time work that paid $18 per hour was available
in the Twin Cities of Minnesota . . . . [Relator] was not
interested in obtaining other work. His plan was to go back to
work with Arel Trucking.

These findings are supported by the limited record. When asked on the DEED
questionnaire to provide the name, date, and provider of any job search workshop s, fairs
or clubs attended, relator answered “[n]one. Guaranteed job back in spring.” When asked
to provide a detailed work search history, relator answered “Craigslist every day[.] No
work out there.” This, combined with his testimony at the hearing, supports the ULJ’s
finding that relator was not genuinely looking for employment, he was simply waiting until
spring to start back with Arel Trucking. Relator testified, “[w]e get laid off about the same
time every year, get called back the same time ever y year, and we’re guaranteed our jobs
back. I don’t understand what the problem is.” The ULJ found relator’s testimony that he
was genuinely looking for employment to be not credible, and this court does not disturb
credibility determinations on appeal. Bangston, 766 N.W.2d at 332.

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Viewing the record in the light most favorable to the decision, the evidence
substantially supports the ULJ ’s findings that relator was not actively seeking suitable
employment, and thus, was ineligible for unemployment benefits.
II. Relator had proper notice of the issues to be considered.
Relator also argues that the ULJ “rendered a decision that violated the constitution
and was based on an unlawful procedure[]” because the legal issue the ULJ described in
the hearing was different than the legal issue st ated in the written d ecision. We are not
persuaded.
On receiving an application, DEED must make an initial eligibility determination.
Minn. Stat. § 268.101, subd. 2 (a) (2018). Then, if the initial determination is timely
challenged by the employer or employee, a hearing must be held before a ULJ. Minn. Stat.
§ 268.105, subd. 1(a) (2018). The ULJ must generally send a notice of hearing to the
parties at least ten days before the scheduled hearing date. Minn. R. 3310.290 5, subp. 2
(2017). The notice must include the time and date of the hearing, along with a statement
of the issues to be considered. Id. But, the ULJ “may take testimony and render a decision
on issues not listed on the notice of hearing if each party is notified on the record, is advised
of the right to object, and does not object.” Minn. R. 3310.2910 (2017).
After relator appealed the determinations of ineligibility, DEED sent him a notice
of hearing for each of the determinations. Each of the notices stated that the issue to be
considered at the hearing was “[w]hether DENNIS J AREL has been available to accept
suitable employment and actively seeking suitable employment.” Relator now argues for
the first time on appeal that the ULJ violated his constitutional rights by framing the issue

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slightly differently at the hearing. The ULJ stated that, “[t] he issue before me today is
whether [relator] was actively seeking suitable employment between January 1, 2017 and
April 15, 2017, November 19, 2017 and January 6, 2018, and January 7, 2018 to . . . April
21, 2018.”
“When . . . a due process challenge revolves around the adequacy of notice, we
determine whether the notice was reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an opportunity to
present their objections.” Godbout v. Dep’t of Emp’t & Econ. Dev., 827 N.W.2d 799, 802
(Minn. App. 2013) (quotation omitted). Relator was given full notice on each of the three
notices of hearing that the issue that would be decided by the ULJ was whether he was
available to accept employment and whether he was actively seeking employment. The
fact that the ULJ misspoke at the hearing and omitted the “available to accept employment”
issue does not mean that relator never received notice that it would be an issue.
Relator argues that he relied on the ULJ’s verbal description of the case because he
does not have a high school diploma or GED. However, he provides no caselaw that would
support the argument that the ULJ’s verbal description of the issues supersedes what was
very clearly stated on the three notices. The ULJ misspoke in its description of the issues
at the hearing, but relator does not argue that he was prejudiced in any way, and does not
argue that he would have testified differently if he had been told about the other issue. See
Minn. R. Civ. P. 61 (requiring harmless error be ignored). The notices relator received
provided him sufficient information to apprise him of the issues at stake at the hearing, and
gave him the opportunity to present objections. There is no due-process violation here.

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III. The ULJ did not act as an improper “material witness.”
Relator, lastly, argues that the ‘ULJ should have been disqualified for serving as [a]
material witness.” Relator states that “the ULJ served as a material witness and used their
own testimony and internet searches to support the reasons for decision.” We disagree.
At the hearing, the ULJ went online and searched for truck driving jobs in the Twin
Cities, asking relator about what potential job positions he would be capable of applying
for. At the end of the hearing, the ULJ also left the record open in order to submit job
market information into the record, and gave relator time to respond to the later submitted
exhibits.
The unemployment statute requires an analysis of the applicant’s job search in
relation to the labor market area. See Minn. Stat. § 268.085, subd. 16 (a). (“‘Actively
seeking suitable employment’ means those reasonable, diligent efforts an individual in similar
circumstances would make if genuinely interested in obtaining suitable employment under the
existing conditions in the labor market area.”). This court has explained that, “[c] aselaw
implicitly supports the rule that ineligibility determinations must consider the number and
scope of employment options available to an applicant in addition to the number of
applications submitted or time expended.” Neumann v. Dep’t of Emp’t & Econ. Dev., 844
N.W.2d 736, 739 (Minn. App. 2014).
We have also explained the unique role the ULJ maintains in this process, stating
that a ULJ “must consider the relevant ‘labor market area’ based on surrounding
circumstances[]” becau se the “labor market area may differ depending on the work
experience and location of each applicant for benefits.” Work Connection, Inc. v. Bui, 749

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N.W.2d 63, 69 (Minn. App. 2008), review granted (Minn. June 18, 2008) and appeal
dismissed (Minn. July 6, 2009). For example, “the relevant labor market is different for a
brain surgeon and a common laborer; it is different for an urban and a rural Minnesotan;
and it may be different for ex -urban and inner-city parts of a metropolitan area. ” Id. In
Neumann, this court reversed the finding that the applicant was not seeking suitable
employment because the ULJ failed to identify the labor market area and to consider the
existing labor conditions. 844 N.W.2d at 739.
In this case, the ULJ was not acting as a witness; she was not under oath and did not
testify about information that she personally knew about. Instead, the ULJ did research
into the existing job market so that she could ask relator about his job search, in light of
what the statute and caselaw require. The ULJ also repeatedly asked relator if he had any
objections, which he said he did not, and gave him time to respond to the information later
submitted in exhibit six, which he did not do. Relator cites no authority with respect to this
argument, and does not explain how he was prejudiced. Given the ULJ’s unique role as
fact-finder in this situation, it was not error to conduct internet searches into the labor
market during the hearing.
Affirmed.