In the Matter of: Alison Wettig.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0868

In the Matter of: Alison Wettig.

Filed June 1, 2021
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

Department of Employment and Economic Development
File Nos. 37983448, 38000790

Alison Wettig, Somerset, Wisconsin (pro se relator)

Keri A. Phillips, Anne B. Froelich, De partment of Employment and Economic
Development, St. Paul, Minnesota (for respondent Minnesota Department of Employment
and Economic Development)

Considered and decided by Smith, Tracy M., Presiding Judge; Connolly, Judge; and
Klaphake, Judge.

NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
Relator Alison Wettig challenges two deci sions by an unemp loyment-law judge
(ULJ) determining that Wettig was ineligible for unemployment benefits for two different
time periods because she was not actively seeking suitable employment. Wettig asserts that
she did not initially understand the requirement to be actively seeking suitable employment
but that she made diligent efforts once she understood it. Respondent Minnesota

 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.
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Department of Employment and Economic Development (DEED) argues that the decision
with respect to the first time pe riod should be affirmed, but that the decision with respect
to the second time period sh ould not be entirely affirmed and the matter should be
remanded for further development of the record regarding the adequacy of relator’s efforts
to seek work. We agree with DEED and affirm in part, reverse in part, and remand.
FACTS
Wettig has worked at Anders en Windows as an assembly worker since July 2018.
Andersen temporarily laid off Wettig effective January 4, 2020, and scheduled her to return
to work on April 6, 2020. In December 2019, before the layoff began, Wettig established
an unemployment-benefits account. In resp onse, DEED mailed her a copy of its
Unemployment Insurance Information Han dbook. The handbook st ated, “You must
actively look for work even if you . . . expect to return to a seasonal job. You must make a
serious effort to find work every week you request a benefit payment.” On January 17,
2020, DEED sent Wettig a work search warning reiterating that Wettig must be “looking
for work every week that [she] request[s] benefits” and that this requirement applies “even
if [she] will be going back to a former employer.”
On her benefits application for the week of January 26, 2020, Wettig stated that she
did not actively search for work that week . When asked by the DEED system why not,
Wettig stated, “I am on seasonal lay off from my current job. I plan on returning as soon
as they call me back. Therefore, I don’t need to search for jobs currently.” Wettig’s answer
to whether she had actively searched for work and her explanation why she had not were
similar in her benefits application for the week of February 2, 2020.
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On February 6, 2020, DEED mailed Wettig a determination of ineligibility for the
week of January 26, explaining that Wettig did not actively search for employment that
week. DEED assigned this determination of ineligibility Issue No. 37983448.
Andersen called Wettig back for a week of work beginning February 9, 2020.
On February 13, 2020, DEED mailed Wettig a determination of ineligibility for the
week of February 2, again stating that Wettig did not actively search for employment that
week. DEED assigned this determination of ineligibility Issue No. 38000790. DEED told
Wettig that she would remain ineligible for benefits un til she began an “active work
search.”
Thereafter, Wettig began to search for wo rk and applied for two positions—one at
a liquor store and another at a bar. Wettig also called Andersen every week asking for work.
Wettig appealed both determinations of ineligibility, and the ULJ held a hearing on
both on March 13, 2020. The ULJ determined in separate decisions that Wettig was not
actively seeking suitable empl oyment and was therefore in eligible for unemployment
benefits. The ULJ affirmed these decisions after Wettig requested reconsideration.
Wettig appeals by certiorari.
DECISION
When reviewing a ULJ’s decision, we may affirm or remand the decision for further
proceedings or we may reverse or modify a decision that prejudices the relator’s substantial
rights because the decision is unconstitutio nal, exceeds the statutory authority or
jurisdiction of the department, is based on unlawful procedure, is affected by other error of
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law, is unsupported by substa ntial evidence, or is arbitr ary or capricious. Minn. Stat.
§ 268.105, subd. 7(d)(1)-(6) (2020).
Wettig challenges the ULJ’s d ecisions that she was inelig ible for benefits because
she was not actively seeking suitable empl oyment. Whether Wettig was seeking suitable
employment is a question of fact. See Semanko v. Dep’t of Emp’t Servs., 244 N.W.2d 663,
665 (Minn. 1976). “This court views the ULJ’s factual findings in the light most favorable
to the decision. This court al so gives deference to the cred ibility determinations made by
the ULJ. As a result, this court will not disturb the ULJ’s factual findings when the evidence
substantially sustains them.” Peterson v. Nw. Airlines, Inc., 753 N.W.2d 771, 774 (Minn.
App. 2008) (citations omitted), review denied (Minn. Oct. 1, 2008).
To be eligible for unemployment benef its, Wettig had to have been “actively
seeking suitable employment.” Minn. Stat. § 268.085, subd. 1(5) (2020). That phrase is
defined by statute as
those reasonable, diligent effo rts an individual in similar
circumstances would make if genuinely interested in obtaining
suitable employment under the existing conditions in the labor
market area. Limiting the search to positions that are not
available or are above the applicant’s training, experience, and
qualifications is not “actively seeking suitable employment.”

Id., subd. 16(a) (2020). The statute also provides that, “[i]f reasonable prospects of suitable
employment in the applicant’s usual or custom ary occupation do not exist, the applicant
must actively seek other su itable employment to be ‘actively seeking suitable
employment.’” Id., subd. 16(c) (2020). This provision “applies to an applicant who is
seasonally unemployed.” Id.; see also McNeilly v. Dep’t of Emp. & Econ. Dev. , 778
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N.W.2d 707, 711 (Minn. App. 2010) (“Minn. Stat. § 268.085, subd. 16(c), is explicit—
seasonal employees must activ ely seek employment to be eligible for unemployment
benefits.”).
We address the ULJ’s two decisions separately.
Issue No. 37983448 (Week of January 26)
Wettig argues that the ULJ’s decision with respect to the week of January 26 should
be reversed because she understood that she did not have to look for work “as long as [she]
stated that the reason was a temporary layoff with a callback date.” At the hearing before
the ULJ, Wettig testified that “no one ever told [her]” that she was supposed to immediately
start looking for work. But DE ED sent Wettig a copy of th e information handbook that
states that an applicant “must actively look for work even if [she has] a part-time job or
expect[s] to return to a seasonal job.” And, on January 17, DEED mailed to Wettig a work
search warning, advising that she was required to look for other wo rk. Wettig was thus
informed that, even though she would return to Andersen in a few months, she needed to
search for work in the meantime to remain eligible for unemployment benefits.
The record supports the ULJ’s finding that Wettig was not actively seeking
employment during the week of January 26. Wettig stated in DEED’s request for
information that she did not contact any employers for work, did not talk to a job counselor,
did not search for any businesses offering similar work, and did nothing else to seek work
that week. At the hearing with the ULJ, Wettig confirmed that she did not seek work during
that week. Because Wettig admittedly made no efforts to seek suitable employment during
the week of January 26, 2020 , the ULJ did not err by dete rmining that Wettig was not
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actively seeking suitable employm ent and was therefore not el igible for benefits during
that time period. We therefore affirm the ULJ’s decision in Issue No. 37983448.
Issue No. 38000790 (Week of February 2 Through the Hearing)
Wettig also challenges the ULJ’s decision with respect to the second time period—
February 2 through the date of the heari ng, March 13, 2020. DEED, on the other hand,
asserts that Wettig was ineligible for benefits for the first two weeks of that time period but
that, with respect to the remainder of that time period, the matter sh ould be remanded to
the ULJ for additional fact-finding. Specifically , DEED asserts that, with respect to the
period of February 16 through March 13, the ULJ did not properly develop the record
before concluding that Wettig’s efforts to find a job were not suitable for her labor market
area.
With respect to the week of February 2, Wettig admitted at the hearing that she did
not seek employment. The record therefore supports the ULJ’s finding that Wettig was not
actively seeking suitable employm ent during that week. With respect to the next week,
beginning February 9, Wettig worked 40 hours at Andersen. B ecause Wettig worked full
time that week, she made reas onable, diligent efforts to ob tain suitable employment. The
record therefore does not suppo rt the ULJ’s finding that We ttig was not actively seeking
work that week. Wettig, however, will not be eligible for unemployment benefits because
she worked 40 hours that week. See Minn. Stat. § 268.085, subd. 2(6) (2020) (stating that
an applicant is ineligible for benefits for any week in which the applicant performs 32 hours
or more of work).
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With respect to the remain ing weeks in this period, the ULJ found that Wettig
applied for a job at a liquor store the week of February 16 and that she applied for a second
job as a waitress the week of February 23. The ULJ also found that she called Andersen
weekly to check in but that she had not si gned up with any temporary staffing agencies.
The ULJ determined that Wettig was “not genuinely interested in finding temporary
employment during her layoff from Andersen” and had not conducted an “active search
for work.”
The ULJ came to this determination without making any findings of fact regarding
what employment is suitable for Wettig, the relevant labor market area, and the conditions
existing in the relevant labor market area. We have stated that the ULJ “must consider the
relevant ‘labor market area’ based on su rrounding circumstances” because “the labor
market area may differ depending on the work experience and location of each applicant
for benefits.” Work Connection, Inc. v. Bui, 749 N.W.2d 63, 69 (Minn. App. 2008), review
granted (Minn. June 18, 2008) and appeal dismissed (Minn. July 6, 2009); see also Minn.
Stat. § 268.085, subd. 16(a). As DEED asserts in its brief to this court, “Whether Wettig’s
efforts in applying to two jobs during a f our-week period meets the criteria for ‘actively
seeking suitable employment’ depends in pa rt on what was available in Wettig’s labor
market area.”
In addition, the ULJ did not assist Wettig in developing the record to make these
necessary findings. The record contains a post office box in Somerset, Wisconsin, as
Wettig’s mailing address but no evidence of where Wettig lives and works. And the ULJ
did not ask whether Wettig performed othe r job-search activities—like networking,
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looking at job postings, or reaching out to lo cal businesses to ask about job openings. A
ULJ has a duty to assist parties to “ensure th at all relevant facts are clearly and fully
developed.” Minn. R. 3310.2921 (2019).
Because the ULJ did not make adequate factual findings to determine whether
Wettig was actively seeking employment from February 16 through March 13, and
because the ULJ did not assist Wettig in developing the record necessary to make those
findings, the ULJ’s determina tion with respect to those we eks is not suppo rted by the
record. We therefore affirm in part, reverse in part, and remand the ULJ’s determination in
Issue No. 38000790 for additional fact-finding and redetermination of Wettig’s eligibility
for unemployment benefits from February 16 through March 13.
Affirmed in part, reversed in part, and remanded.