On appeal from the Board of Review, Department of Labor, Docket No. 01-B-04245-000-XO.
Before Judges Stern, Coburn and Alley.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Helen Darby (hereinafter "claimant") appeals from the final administrative determination of the Board of Review, which upheld the denial of her claim for unemployment benefits for the period commencing March 25, 2001. We affirm.
The difficult issue raised by this appeal flows from an agreement reached by the claimant and her employer. The agreement was embodied in a letter sent to claimant by the employer's Director of Human Resources. It was dated January 4, 2001, but noted as "revised" on both February 5, 2001, and February 21, 2001. On February 22, 2001, claimant executed the agreement by signing:
I acknowledge that I have read, understand and agree to all the terms of this Agreement and Release and further acknowledge that I have had the opportunity to review it with an attorney.
The letter agreement provides that claimant's "employment relationship that has existed will end effective March 23, 2001," but "that as consideration," she "will continue to be on active payroll status from March 26, 2001 through May 31, 2002, in lieu of separation pay." Her "separation date" was acknowledged to be May 31, 2002. Under the agreement, claimant was to receive a gross amount of $69,511.30 in bi- weekly payments of $2,242.30. Her "group health insurance" was to be continued under COBRA for eighteen months after the "separation date or until the attainment of age 65, whichever occurs first." The agreement required claimant to continue to honor her "confidential duties under [the] Employee Secrecy Agreement" she executed in 1994, and embodied the settlement of any possible claim she might have against the employer resulting from her termination about fourteen months before she was eligible for retirement and a full pension in May 2002. Accordingly, the letter contained a release of the employer and affiliate companies of all claims and "specifically . . . any claims of illegal discrimination or retaliation . . . breach of contract, breach of promise, wrongful discharge [and] unjust dismissal . . . ."
A portion of the hearing before the Appeal Tribunal was not recorded, but when the tape was turned back on, the hearing officer noted, without dispute, what the evidence revealed. Claimant worked for respondent for twenty-three years, and "[s]he would have been entitled to two weeks' earnings for every year that she worked if she accepted or been laid off and given that severance pay," together with five weeks vacation time, for a total of fifty-one weeks of pay under the severance package offered to other employees laid off at the same time. There may have been some dispute about additional entitlements. However, it was undisputed, as the appeals examiner noted during the hearing, that "Ms. Darby would receive the same amount [of] gross earnings under this agreement as she was [earning] when she went to work everyday and performed her job duty." Moreover, she did not pay for medical benefits while on the payroll, unlike the persons who were severed.
On the employer's appeal from a Deputy Director's determination that claimant was entitled to benefits, the Appeal Tribunal held that the claim was "invalid" and that she was "ineligible for benefits . . . as she [was] receiving continuation wages in accordance with N.J.A.C. 12:17-8.8(a)." *fn1 The Board of Review affirmed on the record made by the Appeal Tribunal.
Claimant argues that she is not disqualified from the receipt of employment compensation because she was being paid for past services, not ongoing employment. The point is colorable because "[t]he receipt of severance or separation pay in periodic payments or in a lump sum shall not be a bar to eligibility for unemployment benefits." N.J.A.C. 12:17- 8.7(b) (emphasis added), and, under N.J.A.C. 12:17-8.7(a), "'severance or separation pay' shall mean any lump sum payment or periodic payment made to an individual by an employer at termination under contract or obligation or by custom which is based on past services performed for the employer." Pursuant to the agreement negotiated in this case, claimant was carried on respondent's books from March 23, 2001, to her "separation date" of May 31, 2002, so that she qualified for an age and service pension at age fifty-five. Moreover, as we have noted, during this period, she did not have to pay COBRA, as the severed employees did, and she continued to receive the equivalent of her salary as well as medical and dental benefits. Claimant also continued to accrue time towards her pension. *fn2
In essence, claimant had the best of both worlds: she was no longer in an "employment relationship" but was on "active payroll status." She could even find work elsewhere and earn additional income, subject to certain restrictions contained in the agreement.
N.J.A.C. 12:17-8.8(a), on which the Appeal Tribunal and Board of Review relied, provides:
An employer may elect to continue wage or salary payments and forego the services normally performed by the employee through the date of termination provided for by contract or other agreement. A claim filed by an individual receiving such payments shall be invalid and he or she shall be ineligible for benefits through the date of termination of contract or other agreement. However, salary continuation payments may be ...