Off-Duty Marijuana Distribution Blazes Trail for Unemployment Compensation Denial

The Minnesota Court of Appeals gave us the straight dope on whether off-duty behavior can be considered misconduct that disqualifies a terminated employee from receiving unemployment compensation benefits.

A Budding Problem

Daniel A. Vogel worked as a Forest Technician for Order of St. Benedict (“OSB”) for over twenty years.  He lived on 30 acres of his own property.

In August 2016, the National Guard Counter Drug Division flew over Vogel’s property and observed a “probable marijuana growing operation.” Local law enforcement obtained a warrant and searched Vogel’s home where they found multiple growing marijuana plants, large amounts of loose marijuana, and other items associated with the distribution of marijuana. In January, 2017, the State of Minnesota charged Vogel with a fifth-degree felony for distribution of marijuana.

OSB eventually discharged Vogel but not until April of 2018. The discharge was based on Vogel’s violation of an OSB policy providing:

“The unlawful involvement with alcohol or drugs on or off the job is a serious conduct breach. Each employee has an obligation to advise the employer of any known violation of these requirements. Violations of these requirements will result in disciplinary action up to and including termination.”

Vogel filed for unemployment compensation benefits but the Minnesota Department of Employment and Economic Development (“DEED”) determined that Vogel was disqualified from receiving benefits due to misconduct.

Vogel appealed to the Minnesota Court of Appeals claiming that he uses marijuana for religious reasons and that his off-duty conduct should not be considered in the determination of whether he engaged in work-related misconduct.

Court Puts the Lid on Off-Duty Defense

The Minnesota Unemployment Statute states that employees are generally ineligible for unemployment benefits if they were “discharged because of employment misconduct.” Employment misconduct is defined, in part, as “any intentional, negligent, or indifferent conduct, on the job or off the job that displays clearly: (1) a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee; or (2) a substantial lack of concern for the employment.” Minnesota courts have interpreted this to include “an employee’s refusal to abide by the employer’s reasonable policies.”

Vogel contended that his behavior was not misconduct because he used the marijuana for religious purposes.  This belief stemmed from his contention that “the plant was given to us by God” and that it should be used as God intended.  The Appeals Court bluntly disagreed, explaining that the seeds of his termination lay in the criminal charge of intent to distribute, and distribution was not part of his so-called religious practice.

Vogel also argued that his behavior did constitute misconduct because it all took place outside of working hours and off the employer’s premises.  As such, it could not have interfered with his employment or his commitment to the employer. This defense sparked very little consideration as the Court cited the statutory language that misconduct covers behavior occurring “on the job or off the job.”

Ultimately, the Court concluded that Vogel “violated OSB’s reasonable expectations when he distributed marijuana in violation of state law and the employer’s policy.”  This constitutes misconduct under the statute, thereby requiring that the denial of unemployment compensation benefits be affirmed.

Bottom Line

When challenging eligibility for unemployment compensation benefits due to misconduct, do not get lost in the weeds of the employee’s various justifications for the offending behavior.  The unemployment statute and the Minnesota courts have worked jointly to establish this very clear proposition: intentional behavior that violates the employer’s policies or standards of behavior is misconduct even if the behavior takes place off the job.