Kenneth Salway, Relator,

This opinion is nonprecedential except as provided by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
A20-1237

Kenneth Salway,
Relator,

vs.

Tandem Products, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed June 14, 2021
Affirmed
Jesson, Judge

Department of Employment and Economic Development
File No. 38072458-2

Kenneth Henry Salway, Minneapolis, Minnesota (pro se relator)

Keri Phillips, Anne B. Froelich, Minnesota Department of Em ployment and Economic
Development, St. Paul, Minnesota (for respondent department)

Tandem Products, Inc., Minneapolis, Minnesota (respondent employer)

Considered and decided by Jesson, Presiding Judge; Smith, Tracy M., Judge; and
Florey, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
After respondent-employer Tandem Products Inc. received complaints from clients
about relator-employee Kenneth Salway’s la ck of professionalism—and after Salway

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allegedly brought marijuana edibles to the company’s tr ade show booth—Salway was
fired. He applied for and received unemp loyment benefits, but Tandem appealed the
decision. An unemployment-law judge (ULJ) heard the appeal and determined that Salway
had been discharged for employment miscon duct and, as such, was ineligible for
unemployment benefits. Salway appeals. Because the determination was supported by
substantial evidence, and beca use the ULJ did not rely on conduct that occurred after
Salway was discharged and otherwise correctly applied the relevant law, we affirm.
FACTS
In April 2019, respondent Tandem Products Inc. hired relator Kenneth Salway to
work as one of the company’s territory mana gers. Salway’s job was to sell Tandem’s
polyurethane products, foster relationships w ith distributors, and train distributors on the
technical aspects of the products. But in early 2020, Tandem began receiving complaints
from clients about Salway’s lack of profe ssionalism. Still, Tandem sent Salway to
represent the company at a trade show in Las Vegas in February 2020. While there, Salway
failed to show up for one of his shifts, and allegedly spoke unprofessionally to a client and
brought marijuana edibles to the company booth.
Shortly thereafter, Tandem fired Salway . According to Sa lway’s discharge
documents, he was dismissed be cause of his poor performance, policy violations, lack of
product knowledge, poor attendance, suspec ted use of marijuana, and improper and
inaccurate travel expense reporting. Foll owing his dismissal, Salway applied for
unemployment benefits and respondent Mi nnesota Department of Employment and
Economic Development (DEED) issued a dete rmination of eligib ility. Tandem then

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appealed and a ULJ heard the parties’ claims. At the hearing, Salway, Tandem’s assistant
director of human resources and finance, and a Tandem sales manager—who was Salway’s
direct supervisor and had al so attended the trade show—tes tified to the circumstances
leading to Salway’s discharge.
Supervisor testified to bot h his personal knowledge of Salway’s conduct at the trade
show as well as some of the complaints Ta ndem received from clients. According to
supervisor, Salway had a “highly unprofessiona l” phone conversation with an important
client while working at Tandem’s booth. Sa lway also missed a shift at the booth without
notifying his coworkers. And later that w eek, supervisor testified, Salway brought a
container of marijuana edibles to the booth during work ho urs, violating Tandem’s drug
policy.
As for the clients’ complaints, one distri butor reported that Salway showed up to a
meeting with his wife and father-in-law in the car and texted them throughout the meeting.
Another told Tandem that Salway’s car smelled like marijuana. And a third client did not
want Salway to come back to their plant because he had given them incorrect information
about Tandem’s products. Supervisor testifie d that, because of these interactions, the
clients no longer wanted to work with Salway. Finally, supervisor told the ULJ that he had
received threatening text messages from Salway after he was discharged.
1

1 Supervisor explained that while he was at another trade show, Salway sent a text saying
“nobody F’s with my money or my family, I better get paid.” Salway then asked supervisor
if he was currently in Las Vegas before listing supervisor’s address.

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Testimony from the assistant director fo llowed, and included a statement from the
company’s vice president. According to the statement, clients claimed that Salway missed
several meetings, discussed marijuana and other drugs with clients, and stayed in hotels far
from where clients were located “so that he could party.” The statement also alleged that
Salway “went around the distributor” and sold Tandem products to the end user, which
negatively impacted Tandem’s relationship with that distributor and violated Tandem’s
policy of working exclusively with distributors.
When Salway testified, he denied most of Tandem’s claims. He contended that he
could not have been bad at hi s job or disliked by clients be cause his sales numbers were
among the company’s best. Nor did he use marijuana while working, cause his car to smell
like marijuana, or discuss mar ijuana with clients. He alwa ys stayed within a 45-minute
drive of where clients were located, and alth ough he did show up to a meeting with his
wife and father-in-law in the car, he did not text them during the meeting.
With regard to his conduct at the trade show, Salway admitted to having a marijuana
edibles container, but claimed that it held toot hpicks, not edibles. Salway also conceded
that he missed his shift at the booth, but said that it was because his back hurt, which he
told supervisor about the night before. And although he remembered calling a client during
the trade show, he stated that he was not rude during the conversation. As for the text
messages to supervisor, Salway admitted to sending the texts, but denied intending to
threaten supervisor.
Based on the parties’ testimony, the UL J determined that “Salway repeatedly
violated the basic expectation of behaving professionally and respectfully with customers

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multiple times, damaging Tandem’s relationship with those customers. Salway’s conduct
was intentional or indifferent, and amounts to employment misconduct.” Therefore,
Salway was not eligible for unemployment benefits. 2 In providing th e reason for her
determination, the ULJ acknowledged that while the parties disputed some facts, her
findings were based on the testimony of Tandem’s witnesses, “which was credible because
it was sincere, logical, and detailed.” Salway ’s testimony, on the other hand, “was not
credible because it was illogical.” This was especially true, the ULJ found, with regard to
Salway’s testimony about the text messages he sent to his supervisor.
Salway requested reconsideration of the decision, arguing that it was erroneously
based on the text messages he sent to his supervisor, which occurred after he was fired.
The ULJ affirmed the decision and explained th at the text messages were not considered
in determining whether Salway had comm itted employment misconduct, but only in
determining whether Salway’s testimony was credible.
Salway appeals by certiorari. 3
DECISION
Salway argues that the ULJ erred by finding him ineligible for unemployment
benefits due to employment misconduct. Specifically, he asserts that the decision was not
supported by evidence and that the ULJ impr operly based her determination on an event
which occurred after Salway was fired and incorrectly applied the Minnesota

2 The ULJ also determined that the decision resulted in the overpayment of unemployment
benefits in the amount of $6,804.
3 Minn. Stat. § 268.105, subd. 7 (2020).

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Unemployment Insurance Law (Unemploymen t Insurance Law). We address each
argument in turn.
I. The ULJ’s decision was supp orted by substantial evidence.

Salway argues that testimony from Ta ndem’s employees, without additional
evidence, was insufficient to allow the ULJ to find by a preponderance of the evidence that
he committed employment misconduct. As such, Salway claims , the ULJ could not
determine that he was ineligible for unemployment benefits.
An individual discharged for employm ent misconduct is not eligible for
unemployment benefits. Minn. Stat. § 268.09 5, subd. 4 (2020). Whether an employee’s
actions qualify as employment misconduct is a mixed question of law and fact.
Wilson v. Mortg. Res. Ctr., Inc. , 888 N.W.2d 452, 460 (Minn. 2016). Whether the
employee committed a certain act is a question of fact, but whether that act constitutes
employment misconduct is a question of law which we review de novo.
Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006). A ULJ’s factual
findings are viewed in the light most favorable to the decision, and we will not disturb
those findings when the evidence substantially supports them. Id.; see also Minn.
Stat. § 286.105, subd. 7(d) (2020). In reviewing Salway’s claim, we first consider whether
the ULJ’s findings of fact ar e supported by substantial ev idence before determining
whether those acts constitute employment misconduct.
Here, the ULJ found that Sa lway brought marijuana edibles to the trade show booth
during work hours, failed to show up for one of his shifts at the booth, and spoke
disrespectfully to a client while at the trad e show. The ULJ also found that Salway had

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“soured” Tandem’s relationships with some of its biggest customers by texting family
members during a meeting, talking about mar ijuana with a client, discussing a discount
with an end user, and smoking marijuana in a car the client was about to get into. These
findings were based on the Tandem employees’ testimony, which the ULJ found credible.
Because credibility determinations are the exclusive province of the ULJ, we defer to those
findings.4 Skarhus, 721 N.W.2d at 344. Accordingly, the Tandem employees’ testimony
substantially supports the ULJ’s findings of fact.
Having determined that th ere is substantial support for the ULJ’s findings that
Salway did in fact commit the alleged acts, we now consider de novo whether those acts
constitute employment misconduct. Empl oyment misconduct is “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 ri ght to reasonably expect of the employee.”
Minn. Stat. § 268.095, subd. 6 (2020). An employee’s refusal to abide by his or her
employer’s reasonable policies cons titutes employment misconduct. Schmidgall v.
FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).
Tandem has a company drug and alcohol policy which states that it is “against
company policy for any employee to be under the influence of, or to use, sell, transfer, or
possess alcohol, or . . . marijuana . . . when reporting to work, while working, or while on
or about company premises.” Tandem also has a policy of selling its products only to

4 Salway also asserts that Tandem misled and lied to the ULJ during the hearing, and that
his own sales report proved as much. But the ULJ did not find Salway’s testimony credible,
and we defer to that determination. Skarhus, 721 N.W.2d at 344.

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distributors, who then provide the product to end users. Salway violated these policies
when he brought marijuana edibles to the trade show and discussed a discount with an end
user instead of Tandem’s distributor.
Furthermore, Salway’s failure to show up for his shift at the trade show and his lack
of professionalism with clients was a serious violation of the standards of behavior Tandem
reasonably expects of its employees. That conduct undermined Tandem’s ability to “assign
the essential functions of the job” to Salway. Skarhus, 721 N.W.2d at 344. We conclude
that Salway’s actions constituted employment misconduct.
In sum, substantial eviden ce supports the ULJ’s determination that Salway’s actions
violated Tandem’s reasonable policies and expectations and constituted employment
misconduct. As such, we will not disturb the ULJ’s determination that Salway was
ineligible for unemployment benefits.
II. The ULJ did not rely on text message s sent after Salway was discharged to
determine that his actions were employment misconduct.

Next, Salway contends that the ULJ im properly based her decision on the text
messages Salway sent to supervisor—after he was fired. Doing so, Salway asserts, violates
the statute directing that actions occurring af ter dismissal should not be considered in
determining eligibility.
Where a ULJ’s decision exceeds statutory authority we may overturn that
determination. Minn. Stat. § 268.105, subd. 7(d)(2). In considering whether such error
occurred here, we first look to the statutory provision at issue. Minnesota Statutes section
268.095, subdivision 7 (2020), establishes that individuals “may not be held ineligible for

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unemployment benefits . . . for any acts or omissions occurring after the applicant’s
separation from employment with the employer.” (Emphasis added.) Applying this rule
to the ULJ’s conduct in this case, we conclude that the ULJ did not erroneously rely on the
text messages to reach her decision.
Although the ULJ mentioned the text messa ges in her determination of Salway’s
ineligibility, the decision makes clear that the messages were only used to ascertain
Salway’s credibility: “[Salway’s] testimony about his text messages to [supervisor] after
the termination , especially, was implausible on its face and weakens his credibility
overall.” (Emphasis added.) And, when affirming her decision, the ULJ reiterated that she
considered “Salway’s testimony about his conduct after the termination only when
deciding whether Salway’s te stimony was believable overall. Salway was not held
ineligible because of his acts after the termination.” (Emphasis added.) In short, the ULJ
did not rely on the text messages to de termine that Salway committed employment
misconduct. Her reference to the text messages was for the limited purpose of ascertaining
Salway’s credibility.
III. The ULJ correctly applied the Mi nnesota Unemployment Insurance Law.

Salway also asserts that the ULJ faile d to apply the Unemployment Insurance Law
as intended—that is, in favor of awarding unemployment benefits. To support his claim,
Salway cites to Minnesota Statutes section 268.031, subdivision 2 (2020), which provides
instruction as to how the Unemployment Insurance Law should be applied:
This chapter is remedial in nature and must be applied in favor
of awarding unemployment benefits. Any legal conclusion

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that results in an applicant be ing ineligible for unemployment
benefits must be fully supported by the facts.

(Emphasis added.) Salway leans on the first sentence of the statutory application provision
to support his claim. But because we view the statute as a whole, we must also consider
the sentence that immediately follows. State v. Henderson , 907 N.W.2d 623, 625
(Minn. 2018) (“We read a statute as a whole and give effect to all of its provisions.”).
Here, as described above, the record fu lly supports the ULJ’ s determination of
ineligibility. The ULJ de termined that Salway was inelig ible for unemployment benefits
because of his conduct at the trade show and his interactions with Tandem’s clients. That
determination was fully supported by the ULJ’ s findings of fact, wh ich in turn, were
substantially supported by the Tandem employees’ credible testimony. We discern no error
in the ULJ’s application of the law to the facts in this case.
In sum, there was substantial evidence to support the ULJ’s determination that
Salway committed employment misconduct and was ineligible for unemployment benefits.
In reaching this decision, the UL J relied only on conduct occurring before Salway’s
discharge and correctly applied the Unemployment Insurance Law.5
Affirmed.

5 Salway further argues that he did not receive a fair hearing. He does not provide any
specific examples of prejudice or error, but characterizes the hearing as “very one sided.”
But we do not consider assignments of error based on mere assertion. Schoepke v.
Alexander Smith & Sons Carpet Co., 187 N.W.2d 133, 135 (Minn. 1971). And our review
of the transcript does not reveal any pr ejudicial errors co mmitted by the ULJ. Id. As a
result, Salway’s unfair-hearing claim fails.