(dissenting).
I respectfully dissent. Although I agree that relator is ineligible for unemployment benefits during the time he was physically incarcerated in the Hennepin County Corrections Facility, from April 28, 2006, through June 26, 2006, this period of ineligibility should have ended upon his release to his home with an electronic monitoring device.
MinmStat. § 268.085, subd. 2(3) (2006), states that an applicant is ineligible for unemployment benefits while incarcerated or performing court-ordered community service. I agree with the majority that this statute is ambiguous as applied here. The statute supplies no definition for “incarcerated,” and, as the majority points out, the rule that formerly provided some instruction was repealed. See Minn. R. 3305.0500 (1997), repealed 1999 Minn. Laws eh. 107, § 67.
But we must determine and give effect to legislative intent in construing the statute, and must construe it, if possible, to give effect to all its provisions. Minn.Stat. § 645.16 (2006). The majority argues that Minn.Stat. § 268.085, subd. 2(3), creates ineligibility beyond the factors of availability for work listed in subdivision 1. The plain language of MinmStat. § 268.085, subd. 2(3), describes availability, however, not blanket ineligibility: “The applicant’s weekly unemployment benefit amount shall be reduced by one-fifth for each day the applicant is incarcerated!.]” Thus, the statute contemplates that an applicant can continue to collect weekly benefits, presumably when available for work, so long as those benefits are reduced by one-fifth for each day that the applicant is incarcerated, or presumably unavailable for work. Notably, the legislature included as ineligible a person performing community service. This again shows legislative concern for availability and not blanket ineligibility. Once relator was released and put on electronic monitoring, he was available for all approved activities, which included employment of up to six days per week. We can reconcile the provisions of this statute by balancing ineligibility and availability.
The majority relies on Mueller v. Comm’r of Econ. Sec., 633 N.W.2d 91 (Minn.App.2001), to argue that relator is unavailable for employment because of significant restrictions on his availability. But in Mueller, the employee had serious physical limitations from an injury and surgery that prevented her from working the hours that are “normal for the applicant’s usual occupation or employment.” Id. at 93. Relator was available for employment up to six days per week, more than a normal work week, and for the usual hours of his chosen occupation.
We also are assisted in ascertaining legislative intent by examining other laws on the same or similar subjects. Minn.Stat. *376§ 645.16(5). Although chapter 268 fails to include a definition of incarceration, the criminal code provides insight on what the legislature considers to be included within the meaning of “incarceration.” Minn. Stat. § 609.135, subd. 1(a) (2006), refers to different levels of sanctions: imprisonment, probation, and intermediate sanctions. “Intermediate sanctions” are further defined to include
incarceration in a local jail or workhouse, home detention, electronic monitoring, intensive probation, sentencing to service, reporting to a day reporting center, chemical dependency or mental health treatment or counseling, restitution, fines, day-fines, community work service, work service in a restorative justice program, work in lieu of or to work off fines and, with the victim’s consent, work in lieu of or to work off restitution.
Id. at subd. 1(b). Thus, the legislature clearly makes a distinction between incarceration and electronic monitoring.
Further, Minn.Stat. § 609.135, subd. 4 (2006), permits a court to order as a condition of probation incarceration in a county jail, regional jail, work farm, workhouse, or other local correctional facility. Subdivision 6 urges a court “staying imposition or execution of a sentence that does not include a term of incarceration as a condition of the stay” to use intermediate sanctions. Again, the legislature provides guidance for interpretation of the term “incarcerated” by not extending its meaning to include the lesser sanction of electronic monitoring. Had the legislature intended to include intermediate sanctions, such as electronic monitoring, in the list of circumstances which renders relator ineligible for benefits, it would have done so.
In my view, the majority’s reliance on Smith v. Am. Indian Chem. Dep. Diversion Project, 343 N.W.2d 43, 44 (Minn.App.1984) and Jenkins v. Am. Exp. Fin. Corp., 721 N.W.2d 286, 288-89 (Minn.2006) is not helpful. In Smith, the employee lost his job because he failed to appear at work while incarcerated. Relator was unemployed and had established an account with the department before his incarceration; he did not lose his job because of the incarceration. In Jenkins, the Minnesota Supreme Court discussed whether the incarceration of an employee who was eligible for work release, but whose employer refused to cooperate with the details of obtaining work release, constituted misconduct for purposes of a denial of eligibility. Again, that is not the situation confronting us here.
The purpose of the unemployment compensation program is to protect workers who are unemployed through no fault of their own. Minn.Stat. § 268.03, subd. 1 (2006). The statute is deemed to be remedial in nature; as such, this court should narrowly construe disqualification provisions. See Jenkins, 721 N.W.2d at 289. Relator was unemployed, and available for and actively seeking employment. I would reverse the ULJ’s decision finding relator ineligible for benefits solely because he was on electronic monitoring.