Before Steadman and Reid, Associate Judges, and Belson, Senior Judge.
The opinion of the court was delivered by: Steadman, Associate Judge.
On Petition for Review of Decision of the District of Columbia Department of Employment Services
Submitted December 9, 199
The issue in this appeal is the proper treatment of severance pay in determining the eligibility of a laid-off employee for unemployment benefits. The Department of Employment Services (DOES) apparently interpreted our decision in Dyer v. District of Columbia Unemployment Comp. Bd., 392 A.2d 1 (D.C. 1978), to mandate that a severance payment must be treated as applicable to the time in which the payment was actually made to the employee. We think this is an incorrect reading of that case and therefore vacate the DOES order denying unemployment benefits to petitioner and remand for further proceedings.
As a result of downsizing efforts by her employer, Blue Cross Blue Shield of the National Capitol Area, petitioner Ratna Maturu was informed in a letter dated January 21, 1994, that she was being discharged as of that date. However, the letter said, the employer was making a voluntary offer of the following "severance pay and health insurance coverage" arrangement:
"Eight (8) weeks severance at your current salary, less standard withholding and authorized deductions paid over eight (8) weeks in bi-weekly installments, and group health insurance coverage during this period. Outplacement services will be provided to you in accordance with the reduction in force policy."
The letter went on to state that if the offer was accepted, "in your final paycheck you will receive payments for your accrued annual leave in accordance with company policy, and at the end of your severance period you will have the opportunity to continue your health insurance under the terms of COBRA." In consideration of the severance pay and health insurance coverage, Maturu was required to waive all claims that she might have against the employer, including but not limited to those arising under the Age Discrimination in Employment Act (ADEA). As required by the ADEA when such waivers are included, 29 U.S.C. § 626 (f)(1), the offer was to remain open for forty-five days and even if accepted and signed could be revoked by Maturu within seven days thereafter. The letter advised Maturu to consult counsel prior to signing the agreement. If the offer was not accepted, the final paycheck would still include accrued annual leave but rather than group insurance, "you will have the opportunity to continue your health insurance under the terms of COBRA at that time."
Because she "wanted to be sure I understood the language," Maturu did not sign the agreement until February 28, 1994. Biweekly severance payments were then made over the ensuing eight weeks. Because it was her understanding that the eight-week period to which the severance pay was attributable began on January 21, the date of her termination, she did not apply for unemployment compensation until March 15. She obtained new employment effective April 25, 1994.
The issue, then, was whether she was entitled to unemployment benefits for the period March 13, 1994, to April 23, 1994. *fn1 After a hearing, the appeals examiner ruled as follows. Severance pay constitutes "earnings" for unemployment eligibility purposes. Since Maturu was not entitled to any severance payments until she signed the agreement on February 28, and was "thus to be paid severance in regular biweekly payments for eight weeks," *fn2 she was ineligible to receive unemployment benefits for the period in question. *fn3 "Only when the claimant does not received [sic] severance is she eligible for unemployment benefits." The Acting Chief of the Office of Appeals and Review in a summary opinion found "no reason to disturb the decision of the Appeals Examiner." Maturu timely sought review by this court.
For unemployment insurance purposes, "earnings" are defined as "all remuneration payable for personal services, including wages, commissions, and bonuses." Further, "an individual shall be deemed `unemployed' with respect to any week during which he performs no service and with respect to which no earnings are payable to him." D.C. Code § 46-101(4), (5).
In Dyer v. District of Columbia Unemployment Comp. Bd., supra, a dismissed employee had been given "two months' voluntary dismissal pay" by her employer. We affirmed a DOES ruling that the employee was ineligible for unemployment insurance for the first five weeks following her dismissal because it had been based on misconduct, as then provided in D.C. Code § 46-310(b) (1973), and for the next four weeks thereafter because of her voluntary dismissal pay. Apparently the full two months dismissal pay was given the employee at the time of her dismissal. We noted that prior to 1972, the law expressly excluded from the definition of wages "dismissal payments . . . which the employer is not legally required to make," D.C. Code § 46-301(c)(3) (1968), and held that the deliberate omission of that language in the 1972 amendments brought such payments within the definition of "earnings." *fn4 Dyer, supra, 392 A.2d at 3. Accordingly, we said, "an individual is not unemployed for a given pay period if he receives voluntary dismissal payments for that period," and the examiner was correct in finding that "petitioner was ineligible for compensation during the additional four-week period for which petitioner received voluntary dismissal payments." Id.
There is a clear distinction, however, between the time period for which an employee receives voluntary dismissal payments (that is, the time period with respect to which they are attributable) and, on the other hand, the time period during which those payments are actually made to the employee. *fn5 The definition of "unemployed" speaks of a week "with respect to which no earnings are payable" to the employee. D.C. Code § 46-101(5). In Dyer, we spoke of the ineligibility of an employee during a pay period where he receives severance payments "for that period," regardless of when the payment is actually made to him, and said that the petitioner in that case was ineligible for unemployment benefits during the four-week period "for which" she received the dismissal payments. Dyer, supra, 392 A.2d at 3. As already indicated, it appears that in fact the payment was made to the petitioner in a lump sum upon departure. Nonetheless, rather than hold ineligibility to the single week in which the payment was made, the money ...