Michael Sirek, 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This opinion is nonprecedential except as provided by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
A21-0278

Michael Sirek,
Relator,

vs.

Northwest Respiratory Services, LLC,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed November 22, 2021
Reversed
Gaïtas, Judge

Department of Employment and Economic Development
File No. 40555952-3

Terry A. Watkins, Watkins Law Office, LLC, Eagan, Minnesota (for relator)

Northwest Respiratory Services, LLC, St. Paul, Minnesota (respondent employer)

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

Considered and decided by Gaïtas, Presid ing Judge; Ross, Judge; and Reilly, Judge.
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
Relator Michael Sirek challenges the decision of an unemployment-law judge (ULJ)
that he is ineligible for unemployment bene fits because he quit his job. Because we
conclude that Sirek quit his job for a good reason caused by his employer, we reverse.
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FACTS
Sirek was employed as a fu ll-time oxygen technician with respondent Northwest
Respiratory Services (NRS), an in-home medical oxygen supplier, from May 7, 2019 until
he quit on January 12, 2020. He lived in Faribault, and NRS was located in Rochester,
about 60 miles from Faribault. Sirek delivered medical oxygen to patients in their homes.
When Sirek began his employment with NR S, the company allowed him to keep the
company delivery truck at his residence and he would begin and e nd his route from his
home. Sirek would resupply in Rochester tw o days a week. By starting and ending his
route from home, Sirek saved time because many of his delivery locations were closer to
his residence and in the opposite direction of Rochester. He also a voided a daily visit to
the company site in Rochester.
In January 2020, NRS informed Sirek of a policy change that required all delivery
trucks to be returned to Rochester at the end of each day. For Sirek, this change meant that
he would have to drive his personal vehicle to and from Rochester every workday, resulting
in a new 120-mile round-trip commute. And because his delivery route included locations
that were north and west of Faribault, and Rochester is south and east of Faribault, the new
policy increased the time it took to do his job.
Sirek discussed the situation with his employer, who gave him ideas about how he
could perform the work differently. Although Sirek followed these suggestions, they did
not help. He put in his notice and quit employment on January 12, 2020.
On May 3, 2020, Sirek established an unem ployment benefits account. He soon
received a written determination of ineligibility , which stated that the change in his
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employment conditions “did not have a substa ntial negative effect on the applicant that
would cause the average reasonable worker to quit.”1
Sirek appealed the decision, and a ULJ held a telephone evidentiary hearing. NRS
did not attend or participate in the hearing.
During the hearing, Sirek explained that he raised the fact that he lived in Faribault
before he accepted the position with NRS. NRS agreed that Sirek would be allowed to
keep the delivery truck at his home. And in structuring Sirek’s delivery route, the company
assumed that he would be starting his route from his home in Faribault. According to Sirek,
he would not have accepted the position if he had been requi red at the outset to leave the
delivery truck in Rochester every day.
Sirek testified that he tried the new policy for two days but he was only getting about
half of his work done throughout the day. To start his route, he was required to drive from
Faribault to the NRS site in Rochester in hi s personal vehicle and th en drive back to the
Faribault area and beyond in the company truc k. To “get everything supplied,” Sirek
estimated that he would have been required to leave his home two hours earlier and end his
workday two hours later. This would have re sulted in an additional 12 to 20 hours of
uncompensated time each week. Sirek was also concerned about the feasibility of making
all of his deliveries going forward. He testified that “it just wasn’t working.”
The ULJ concluded that Sirek did not quit because of a good reason caused by his
employer and was therefore ineligible for unemployment benefits. Although the ULJ

1 Sirek obtained a new job in mid-August 2020. It appears that Sirek sought unemployment
benefits from January to August 2020.
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acknowledged that the policy change “added su bstantial driving to [Sirek’s] day without
additional compensation” and that the change may have motivated an employee to look for
another job, the ULJ concluded that the added commute time would not “compel an
average, reasonable worker to quit and become unemployed ra ther than remaining in the
employment.” Sirek requested reconsideration of this decision, and the ULJ reconsidered
and affirmed.
Sirek appeals.
DECISION
Sirek challenges the ULJ’s decision that he is ineligible for unemployment benefits
because he quit without a good reason caused by his employer. We view “the ULJ’s factual
findings in the light most fa vorable to the decision, givi ng deference to the credibility
determinations made by the ULJ. In doing so, we will not disturb the ULJ’s factual findings
when the evidence substan tially sustains them.” Skarhus v. Davanni’s Inc. , 721 N.W.2d
340, 344 (Minn. App. 2006) (citations omitted). Whether an applicant had a good reason
to quit caused by the employ er is a legal question, wh ich we review de novo. Peppi v.
Phyllis Wheatley Cmty. Ctr., 614 N.W.2d 750, 752 (Minn. App. 2000).
An employee who voluntarily quits employ ment is ineligible for unemployment
benefits unless “the applicant quit the employment because of a good reason caused by the
employer.” Minn. Stat. § 268.095, subd. 1(1) (2020). A good reason caused by the
employer is a reason “(1) that is directly related to the employm ent and for which the
employer is responsible; (2) that is adverse to the worker; and (3) that would compel an
average, reasonable worker to quit and become unemployed ra ther than remaining in the
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employment.” Id., subd. 3(a) (2020). “To compel” is “to cause or bring about by force,
threats, or overwhelming pressure.” Werner v. Med. Pros. LLC , 782 N.W.2d 840, 843
(Minn. App. 2010) (quoting Black’s Law Dictionary 321 (9th ed. 2009)), rev. denied
(Minn. Aug. 10, 2010).
This standard is an objec tive, reasonable-person standard, considering the conduct
of an ordinarily prudent person. Id. It is based on the average person “and not . . . the
supersensitive.” Nichols v. Reliant Eng’g & Mfg., 720 N.W.2d 590, 597 (Minn. App. 2006)
(quotation omitted). An employ ee’s reason for quitting must be “substantial not trifling,
and reasonable, not whimsical; there must be some compulsion produced by extraneous
and necessitous circumstances.” Ferguson v. Dep’t of Emp. Servs., 247 N.W.2d 895, 900
n.5 (Minn. 1976) (quotation omitted).
This statutory analysis “must be applied to the specific facts of each case.” Minn.
Stat. § 268.095, subd. 3(b) (2020). The reason why an individual quit employment is a fact
question for the ULJ to determine. See Beyer v. Heavy Duty Air, Inc. , 393 N.W.2d 380,
382 (Minn. App. 1986) (reviewing determination of reason employee quit as a question of
fact).
The ULJ concluded that “Sirek quit empl oyment for reasons other than a good
reason caused by the employer,” characterizing Sirek’s basis for quitting as a commuting
or transportation issue and noting that the change in NRS’s policy “added substantial
driving to [Sirek’s] day without additional compensation.” The ULJ determined, however,
that the change in circumstances was not something that would compel an average,
reasonable person to quit.
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This conclusion relied on the legal premise that an increased commute is generally
a transportation problem that is not attributable to the employer. See, e.g., Werner, 782
N.W.2d at 842; see also Hill v. Cont. Beverages, Inc., 240 N.W.2d 314, 316 (Minn. 1976)
(holding that relator was ineligible for unemployment benefits when his employer changed
his shift, causing him to be unable to find transportation). In Werner, for example, we held
that an employee’s decision to quit after her round-trip commute of 170 miles increased by
17 miles each way due to the employer’s relocation was not based on a good reason caused
by her employer. 782 N.W.2d at 841. We reasoned that, because transportation is usually
the problem of the employee, the increased time and expense associated with a long
commute are personal reasons for quitting th at do not constitute “compulsion” by the
employer. Id. at 843.
Sirek argues that the employer’s policy ch ange did not present a mere commuting
or transportation issue. He contends that NRS’s previous policy—which allowed him to
keep the delivery truck at his home—was more akin to a term of his employment that the
employer suddenly changed. Indeed, according to Sirek, he never would have taken the
job if he had been required to drive his personal vehicle 120 miles per day and to work
additional uncompensated hours to complete his route, which was tailored around a starting
point at his home in Faribault.
We have previously considered whethe r an employer’s un ilateral changes to
significant agreed-upon employment terms provide a good reason for an employee to quit.
In Krantz v. Loxtercamp Transp., Inc. , we held that the employer’s change of the
employee’s agreed-upon schedule at the time of the hire was a good reason caused by the
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employer to quit. 410 N.W.2d 24 (Minn. App. 1987). Similarly, in Rootes v. Wal-Mart
Assocs., Inc., we determined that an employee’s demotion, which resulted in lower pay and
fewer hours than agreed upon at the time of the employee’s hire, was a good reason caused
by the employer to quit. 669 N.W.2d 416 (Minn. App. 2003).
Here, the record supports the ULJ’s fact ual finding that NRS’s new policy “added
substantial driving to [Sirek’s] day without additional compensation.” But we disagree
with the ULJ’s ultimate legal determination that the policy change presented a mere
commuting or transportation issue, which did not provide an employer-based good reason
for Sirek’s decision to quit.
Before Sirek began working for NRS, he specifically raised the issue of the 60-mile
distance between his home and the NRS fac ility. That concern wa s addressed by NRS’s
agreement to allow him to keep the delivery truck at his home and to begin his route from
home each day. Sirek only accepted the position with NRS based on this understanding.
Given these circumstances, NRS’s agreement th at Sirek could keep the delivery truck at
home during off hours was effectively a term of the employment. That term allowed Sirek
to use the company vehicle and avoid commuting in his personal vehicle. It affected the
duration of his workda ys because his route was planned around his residence. And it
allowed him to take a position from an employer in Rochester that he otherwise would not
have accepted.2 In Sirek’s employment with NRS, it was agreed that transportation would

2 NRS belatedly submitted to the ULJ a copy of Sirek’s em ployment offer letter and its
policy on use of company vehicl es. These items were not received before the telephone
hearing and they were not included in the r ecord considered by th e ULJ. We “may not
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not be Sirek’s problem. Contra Werner, 782 N.W.2d at 842 (“[T]h e record reflects that
transportation was ultimately [Werner’s] responsibility, not the employer’s.”). As a term
of employment, Sirek was permitted to begin and end his days from home.
Much like the employers’ unilateral changes in Krantz and Rootes, NRS’s new
policy significantly and adversely changed that term of Sirek’s employment. Sirek had to
use his personal vehicle to commute to work. To continue in the employment, he was
required to drive 120 more mile s each workday. And the ine fficiency of the new policy,
which required him to commute to Rochester only to later pass his own home on his regular
route, caused him to put in driving time that was not compensable. The policy change was
directly related to Sirek’s employment, NR S was responsible for the change, and the
change created was a condition that was adverse to Sirek.
Even in the face of an adverse condition caused by an employer, an employee does
not have a good reason to quit if the change in circumstances would not compel an average,
reasonable worker to quit. Id. at 843. The ULJ determined that NRS’s policy change
would not have compelled a reasonable worker to quit the position.
Applying our de novo standard of review , we conclude otherwise. NRS’s policy
change dramatically affected Sirek’s employment conditions. Again, the change required
Sirek to drive 120 miles each da y in his personal vehicle just to get to his work vehicle,
which he previously had kept at home. Sirek would only be able to complete his route—a
route that was designed to start and end at his home—if he added multiple uncompensated

consider matters not produced and received in evidence below.” Icenhower v. Total Auto.,
Inc., 845 N.W.2d 849, 857 (Minn. App. 2014), rev. denied (Minn. July 15, 2014).
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work hours each day. Given these circumstan ces, an average, reas onable worker surely
would have felt overwhelming pressure to quit rather than continue in the employment
under these conditions while also seeking a new job.
Sirek quit his employment with NRS for a good reason caused by the employer.
The ULJ therefore erred in determining that he is ineligible for employment benefits.
Reversed.