Cynthia M. Leisey, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1207

Cynthia M. Leisey,
Relator,

vs.

Express Scripts Services Company,
Respondent,

Department of Employment and
Economic Development,
Respondent.

Filed April 3, 2017
Affirmed
Jesson, Judge

Department of Employment and
Economic Development
File No. 34024783-5

Cynthia M. Leisey, Maple Grove, Minnesota (pro se relator)

Hal A. Shillingstad, Stephanie J. Willing, Ogletree, Deakins, Nash, Smoak & Stewart,
Minneapolis, Minnesota (for respondent employer)

Lee B. Nelson, Keri A. Phillips, St. Paul, Minnesota (for respondent department)

Considered and decided by Worke, Presiding Judge; Halbrooks, Judge; and Jesson,
Judge.
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U N P U B L I S H E D O P I N I O N
JESSON, Judge
In this unemployment -compensation appeal, relator Cynthia Leisey challenges a
decision by an unemployment -law judge that Leisey was ineligible for and overpaid
unemployment benefits during the weeks that she received payments from her employer’s
supplemental-unemployment-benefits plan in amounts equal to or excee ding her regular
weekly pay. We affirm.
FACTS
Leisey worked as a senior director for respondent Express Scripts Services
Company from 1997-2003, and again from 2005 until March 2015, when she was laid off
in a reorganization. She was paid a base salary of $2,857.64 per week and also received a
bonus based on the prior year’s performance. In 2015, she received a performance bonus
for 2014 in the amount of $39,331.51; in 2014, she received a bonus of $40,820.79; and in
2013, she received a bonus of $48,745.15. The bonuses were not guaranteed.
When Leisey was laid off, she was notified that she was eligible for supplemental
unemployment benefits through a plan with Express Scripts. Express Scripts’ plan
provides that employees are eligible to participate in the plan if, among other requirements,
they have been involuntarily terminated due to a layoff, have applied for state
unemployment benefits, and have continued to demonstrate eligibility for those benefits.
The plan provides for weekly supplemental unemployment benefits “equal to 100% of [an
applicant’s] weekly Base Pay.” “Base pay” is defined as “the product of the Eligible
Employee’s base hourly rate multiplied by his or her standard hours per week . . . multiplied
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by 52.” The plan also provides that “[i]n most cases, [supplemental -unemployment-
benefit] pay is not subject to Social Security and Medicare taxes (FICA taxes).”
At the time of her layoff, Leisey was told by Express Scripts that, in order to receive
supplemental unemployment benefits under its plan, she must also apply for regular state
unemployment benefits. She therefore applied for the supplemental unemployment
benefits and also sought regular unemployment benefits by opening a benefits account with
the Minnesota Department of Emp loyment and Economic Development (DEED).
According to Leisey, a DEED representative told her that her receipt of supplemental
benefits would not affect her eligibility for regular state benefits. Leisey began receiving
regular state unemployment benefits of $640.00 per week. She also received 20 weeks of
supplemental unemployment benefits under the plan, at $2,857.64 per week, for a total of
$57,152.80.
In November 2015, after Leisey submitted requested information to DEED on the
supplemental unemployment benefits, she was notified that she had an ineligibility period
for state benefits from April 19, 2015 , through September 4, 2015, the period of time she
received supplemental benefits from Express Scripts. She appealed, and following a
hearing, an unemployment-law judge determined that the sum of her supplemental benefits
under Express Scripts’ plan, plus her regular employment benefits, exceeded her regular
weekly pay. Therefore, Leisey’s supplemental benefits constituted wages under Minnesota
Statutes section 268.035, subdivision 29 (a)(13) (2014), and she had been overpaid state
benefits for the ineligibility period. See Minn. Stat. § 268.085, subd. 3(e) (2014).
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Leisey requested reconsideration, and the unemployment-law judge issued an order
setting aside the prior findings of fact. At an additional hearing, Leisey argued that her
bonuses from Express Scripts should be counted as part of her regular weekly pay, so that
her supplemental employment benefits plus her regular unemployment bene fits amounted
to less than her regular weekly pay. Therefore, she maintained, she was eligible for state
benefits during the designated weeks. The unemployment -law judge issued findings of
fact and a decision determining that: (1) the bonuses did not qua lify as part of Leisey’s
weekly pay; (2) therefore, the sum of her supplemental and regular unemployment benefits
was more than her weekly pay; (3) the supplemental benefits thus constituted wages under
subdivision 29; and (4) Leisey was ineligible during the weeks specified and so had been
overpaid benefits. See id. This certiorari appeal follows.
D E C I S I O N
This court may reverse a decision of an unemployment -law judge if, among other
reasons, that decision is arbitrary and capricious, unsupport ed by substantial evidence in
the record as a whole, or affected by an error of law. Minn. Stat. § 268.105, subd. 7(d)
(2016). We view the factual findings of the unemployment -law judge in the light most
favorable to the decision. Skarhus v. Davanni’s, Inc., 721 N.W.2d 340, 342 (Minn. App.
2006). But we review de novo the unemployment -law judge’s interpretation of
unemployment statutes and the ultimate issue of whether an applicant is eligible for
unemployment benefits. Menyweather v. Fedtech, Inc., 872 N.W.2d 543, 545 (Minn. App.
2015).
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Leisey argues that the unemployment -law judge erred by considering her
supplemental benefits as wages affecting her eligibility for regular benefits and by
determining that she had been overpaid state benefits. In considering this issue, we address
the history of supplemental unemployment benefits, Minnesota law on the effect of
receiving supplemental unemployment benefits on eligibility for state unemployment
benefits, and the application of that law to this case.
The concept of supplemental unemployment benefits originated with labor demands
for a guaranteed annual wage. United States v. Quality Stores, Inc., 134 S. Ct. 1395, 1402
(2014). These benefits were furnished by employers to “offer [] second-level protection
against layoffs by supplementing unemployment benefits offered by the States.” Id.
(quotation omitted). Supplemental -unemployment plans had the purpose of providing
economic security for regular employees and assuring a stable work force through short -
term layoff periods. Id. at 1402 -03. But in order for these plans to work, supplemental
unemployment benefits needed to be excluded from the definition of “wages” under federal
law because in some states, unemployment benefits were not available to applicants if they
were earning “wages” from their employers. Id.1

1 As one commentator has noted, whether claimant benefit eligibility should be affected by
other forms of compensat ion, such as supplemental unemployment benefits, “depends
upon the specific language contained in the applicable unemployment statute. When
statutory provisions expressly cover different forms of collateral income, they either
require a commensurate reduc tion in weekly benefit amounts or cause recipients to lose
their benefit eligibility.” Mark A. Rothstein, et al., 2 Employment Law § 10:17 , at 870
(5th ed. 2014).
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In Minnesota, the receipt of supplemental unemployment payments may, in certain
situations, affect an applicant’s eligibility for state unemployment benefits. See Minn. Stat.
§ 268.085, subd. 3(b) (2016). Specifically, an applicant is not eligible for state
unemployment benefits for any week in which he or she receives “severance pay, bonus
pay, or any other payments paid by an employer because of, upon, or after separation from
employment,” if those payments are considered “wages” under Minnesota Statutes, section
268.035, subdivision 29, or are subject to FIC A taxation. Id. For this purpose, “wages”
includes “all compensation for employment, including bonuses . . . [and] severance
payments.” Minn. Stat. § 268.035, subd. 29(a).
But supplemental-unemployment benefit payments under an employer’s plan are
not designated as wages, and therefore do not affect an applicant’s eligibility for state
benefits, if certain statutory requirements are met. See id., subd. 29(a)(13). In order to be
excluded from the definition of wages, (1) the supplemental plan must pro vide payments
“only for those weeks the applicant has been paid regular, extended or additional
unemployment benefits” (known as the “timing provision”), and (2) “[t]he supplemental
payments, when combined with the applicant’s weekly unemployment benefits paid, may
not exceed the applicant’s regular weekly pay.” Id.2 Examining the definition of “regular
weekly pay” forms the crux of this appeal.

2 We note that , in 2016, the Minnesota Legislature amended and substantially rewrote
subdivision 29(a)(13). See 2016 Minn. laws ch. 189, art. 9, § 2, at 1027. This amendment
followed the Minnesota Supreme Court’s 2015 holding that the “timing provision” of
subdivision 29(a)(13) was preempted by the Employment Retirement Income Security Act
of 1974 (ERISA). Engfer v. Gen. Dynamics Advance Info. Systems, Inc., 869 N.W.2d 295,
308 (Minn. 2015). We apply the 2014 version of the statute here because Leisey received
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In the proceeding before the unemployment -law judge, and by implication in this
appeal, Leisey argues that the bonuses she received should be included in the definition of
“regular weekly pay” in section 268.035, subdivision 29(a)(13). And when the bonuses
are so included, the supplemental benefits she received, when combined with her regular
unemployment benefits, do not exceed her regular weekly pay. See id. Thus, she argues,
the supplemental benefits do not constitute “wages” under section 268.0 35, subdivision
29(a); they do not affect her eligibility for regular unemployment benefits; and she was not
overpaid benefits. The unemployment-law judge disagreed and determined that, under the
plain language of the statute, bonuses are not included in the definition of “regular weekly
pay,” which instead refers to the amount that a person is paid on a weekly or biw eekly
basis. See id. She also determined that, even if bonuses could be considered, they would
not amount to part of Leisey’s “regular weekly pay” because Leisey’s bonuses “were not
guaranteed and were only paid annually.”
Addressing Leisey’s argument requires us to discern the meaning of “regular weekly
pay” in section 268.0 35, subdivision 29(a)(13). In ascertaining the meaning of a statute,
this court first examines whether it is ambiguous. Engfer, 869 N.W.2d at 300. If statutory
language is unamb iguous, we apply its plain meaning. Id. Plain meaning assumes the

all of her supplemental plan benefits in 2015 and because the legislature specifically
provided that the 2016 amendment would take effect on July 31, 2016. 2016 Minn. La ws
ch. 189, art. 9, § 2, at 1 034; see also Minn. Stat. § 645.21 (2016) (stating that generally, a
law is not construed to be retroactive unless the legislature clearly intended it to be
retroactive). We note, however, that even if we were to apply the 201 6 version of the
statute, we would reach the same result in this case. See Minn. Stat. § 268.035,
subd. 29(a)(13) (2016).
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ordinary usage of words that are not statutorily defined and draws from the full-act context
of the provision. Occhino v. Grover, 640 N.W.2d 357, 359 (Minn. App. 2002), review
denied (Minn. May 28, 2002). Courts may determine the plain meaning of a statute with
the aid of dictionary definitions. Wilson v. M ortg. Res. Ctr., Inc. , 888 N.W.2d 452, 458
(Minn. 2016). Only if statutory language is ambiguous, meaning that it is susceptible to
more than one reasonable interpretation, do we look beyond its language to discern
legislative intent. Staab v. Diocese of St. Cloud, 813 N.W.2d 68, 73 (Minn. 2012).
Here, clause 13 does not define “regular weekly pay.” Minn. Stat. § 268.035,
subd. 29(a)(13). But we may look to dictionary definitions to aid in determining the
statute’s plain meaning. Wilson, 888 N.W.2d at 458. This court has previously held that,
for the purpose of determining police pension deductions, the statutory term “regular
monthly salary” did not include educational incentive pay. City of Crystal Police Relief
Ass’n v. City of Crystal , 477 N.W.2d 728, 730 (Minn. App. 1991), review denied (Minn.
Jan. 17, 1992). In so doing, we employed a dictionary definition of “regular,” me aning
“‘usual, customary, or general.’” Id. (quoting Black’s Law Dictionary 1155 (5th ed.
1979)). Applying this definition of “regular” to clause 13, we discern that, under its plain
meaning, Leisey’s bonus does not qualify as “regular weekly pay” when it was not paid
customarily on a weekly or biweekly basis.
Leisey also argu ed before the unemployment -law judge that the term “regular
weekly pay” should be defined consistently with the term “last level of regular weekly pay”
in Minnesota Statutes, section 268.085, subdivision 3(d). That provision furnishes the
method for determining the number of weeks of payment, which is calculated by dividing
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the total of the payments, or the lump-sum payment, by the applicant’s “last level of regular
weekly pay.” Minn. Stat. § 268.0 35, subd. 3(d)(1) -(2). And it provides that “[f]or the
purposes of this paragraph, ‘last level of regular weekly pay’ includes commission,
bonuses, and overtime pay if that is part of the applicant’s ongoing regular compensation.”
Id., subd. 3(d).
We agree with the unemployment -law judge’s rejection of this argument. Even if
otherwise relevant, subdivision 3(d) expressly states that, in order for bonuses to be
included in an applicant’s “last level of regular weekly pay” under that subdivision, those
bonuses must amount to “part of the applicant’s ongoing re gular compensation.” Minn.
Stat. § 268.085, subd. 3(d). In some circumstances, bonuses may constitute part of an
applicant’s “regular weekly pay” if they are prorated or guaranteed, but here Leisey’s
bonuses were not part of her regular weekly compensati on because they were only paid
annually, and they were not guaranteed.
We therefore conclude that Leisey’s bonuses did not qualify as part of her “regular
weekly pay” under subdivision 29(a)(13). And because the sum of her supplemental
payments and regular unemployment benefits exceeded her weekly pay, the supplemental
benefits amounted to statutory wages, which affected Leisey’s entitlement to state
unemployment benefits. See Minn. Stat. § 268.035, subd. 29(a)(13); Minn. Stat. § 268.085,
subd. 3(b).3 The unemployment-law judge did not err by determining that Leisey had been
overpaid benefits.

3 Leisey argues that DEED representatives incorrectly informed her that her receipt of
supplemental unemployment benefits would not affect her eligibility for state benefits. But
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Affirmed.

unemployment benefits are to be paid only if “the applicant has met all of the ongoing
eligibility requirements under section 268.085.” Minn. Stat. § 268.069, subd. 1(3) (2016);
see id., subd. 3 (stating that “[t]here is no equitable or common law denial or allowance of
unemployment benefits”). Therefore, the DEED representative’s mistake in informing
Leisey about the effect of her supplemental benefits on her state benefits eligibility does
not affect her entitlement to regular unemployment benefits.