Lisa Falck, Relator,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1574

Lisa Falck,
Relator,

vs.

One Call Medical, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed August 22, 2022
Affirmed as modified
Johnson, Judge

Department of Employment and Economic Development
File No. 48051637-2

Christine L. Tuft, Emily A. LaCourse, Arthur, Chapman, Kettering, Smetak & Pikala, P.A.,
Minneapolis, Minnesota (for relator)

One Call Medical, Inc., Jacksonville, Florida (respondent employer)

Keri A. Phillips, Lossom Allen, Minnesota Department of Employment and Economic
Development, St. Paul, Minnesota (for respondent department)

Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Slieter,
Judge.

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NONPRECEDENTIAL OPINION
JOHNSON, Judge
Lisa Falck was laid off from her job but was given ten weeks of severance pay,
which made her ineligible for unemployment benefits for ten weeks. We conclude that the
unemployment-law judge correctly determined the date of the beginning of Falck’s period
of temporary ineligibility but incorrectly determined the amount of her overpayment.
Therefore, we affirm as modified.
FACTS
Falck was employed by One Call Medical, Inc. (OCM) from 2016 until 2020. At
the end of her employment, she was a regional sales director, earning a weekly salary of
$1,682.
OCM placed Falck on an unpaid furlough in April 2020. She promptly established
an unemployment benefit account with the department of e mployment and economic
development and began receiving weekly benefits of $740.
On July 13, 2020, OCM informed Falck that she would be laid off on August 3,
2020. OCM offered Falck an agreement that would provide her with ten weeks of
severance pay at her regular salary. Falck signed the agreement and returned it to OCM,
and her employment ended on August 3, 2020. OCM made the first severance payment to
Falck on September 4, 2020, which corresponded to OCM’s biweekly pay period of August
17, 2020, to August 30, 2020, and Falck received four additional severance payments for
the subsequent eight weeks.
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On September 23, 2020, the department issued a determination of ineligibility
stating that, as of August 4, 2020, Falck was ineligible for unemployment benefits because
she was receiving or would receive severance payments. Falck filed an administrative
appeal. An unemployment-law judge (ULJ) held an evidentiary hearing by telephone in
December 2020 and issued a written decision in January 2021 . Falck requested
reconsideration. In October 2021, the ULJ issued a second decision that made various
modifications to the first decision. Falck again requested reconsideration. In November
2021, the ULJ issued a third decision that further modified the prior decisions. In th e
November 2021 decision, the ULJ determined that, because of her receipt of severance
payments, Falck was ineligible for unemployment benefits “for the weeks of August 2,
2020 through October 10, 2020,” and that her ineligibility resulted in an overpayment of
$4,440. Falck appeals from the November 2021 order by way of a writ of certiorari.
DECISION
This court reviews a ULJ’s decision regarding eligibility for unemployment benefits
to determine whether the findings, inferences, conclusion, or decision are affected by an
error of law, are unsupported by substantial evidence in view of the entire record, or are
arbitrary or capricious. See Minn. Stat. § 268.105, subd. 7(d) (2020). We view questions
of fact in the light most favorable to the decision of the ULJ and “will not disturb the ULJ’s
factual findings when the evidence substantially sustains them.” Ward v. Delta Airlines,
973 N.W.2d 649, 651 (Minn. App. 2022), rev. denied ( Minn. June 21, 2022). “If the
relevant facts are not in dispute, we apply a de novo standard of review to the ULJ’s
interpretation of the unemployment statutes and to the ultimate question whether an
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applicant is eligible to receive unemployment benefits.” Menyweather v. Fedtec h, Inc.,
872 N.W.2d 543, 545 (Minn. App. 2015).
I. Period of Ineligibility
Falck first argues that the ULJ erred by concluding that she was temporarily
ineligible for unemployment benefits as of August 2, 2020. Falck argues that the ULJ
should have concluded that her period of ineligibility began two weeks later, on August
17, 2020, which is the beginning of the OCM pay period corresponding to her first
severance payment.
The department pays unemployment benefits to applicants who meet the statutory
requirements. Minn. Stat. § 268.069, subd. 1 (2020). An applicant’s benefits may be
reduced or delayed by the applicant’s receipt of severance pay. “An applicant is not eligible
to receive unemployment benefits for any week the applicant is receiving, has received, or
will receive separation pay, severance pay, bonus pay, or any other payments paid by an
employer because of, upon, or after separation from employment,” Minn. Stat. § 268.085,
subd. 3b(a) (2020), so long as the amount of weekly severance pay is greater than the
weekly unemployment benefit amount, id., subd. 3b(e).
If an applicant is ineligible because of severance pay, the applicant’s severance
payments “are applied to the period immediately following the later of [1] the date of
separation from employment or [2] the date the applicant first becomes aware that the
employer will be making a payment.” Id., subd. 3b(b). “The date the payment is actually
made or received, or that an applicant must agree to a release of claims, does not affect the
application of this paragraph.” Id.
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In this case, there is no dispute that Falck received severance pay that exceeded her
weekly benefit amount, and there is no dispute that she should be deemed ineligible for a
ten-week period. The only dispute is when Falck was ineligible for unemployment
benefits: beginning on August 2, 2020, as determined by the ULJ, or on August 17, 2020,
as argued by Falck.
To determine the beginning of Falck ’s period of ineligibility, it is necessary to
determine two dates and to apply the latter date. See id. The first relevant date is “the date
of separation from employment.” Id. It is undisputed that Falck’s date of separation from
employment with OCM was August 3, 2020.
The second relevant date is “the date the applicant first becomes aware that the
employer will be making a [severance] payment.” Id. This date is somewhat unclear
because there is conflicting evidence in the record. Falck testified that she received a
proposed severance agreement from OCM on July 13, 2020. But Falck was unsure of the
date on which she signed the severance agreement. She initially testified that she signed it
on July 17, 2020 , but she later testified that she signed it on July 20, 2020, and she also
read from a document indicating that employees were not allowed to sign it until August 1
or 3, 2020. But it is unnecessary to determine the date on which Falck signed the
agreement. As noted, the second relevant date is “the date the applicant first becomes
aware that the employer will be making a payment.” Id. (emphasis added). Falck could
have had such an awareness before she signed the agreement . Indeed, the evidentiary
record supports such a finding given her testimony. The ULJ asked her, “when did you . . .
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know that you would be receiving severance?” She answered, “I believe July 13. I just, I
didn’t know when they were going to cut me a check.”
Under any interpretation of the evidence, the second relevant date is not later than
the first relevant date, August 3, 2020, which was Falck’s last date of employment. The
statute provides that the period of ineligibility begins on “the later of” the two relevant
dates. Id. Accordingly, the ULJ did not err by concluding that Falck’s severance payments
apply to the period immediately following August 3, 2020, which includes five days in the
week beginning Sunday, August 2, 2020. See id. The pro-rated amount of severance pay
received on those five days exceeds Falck’s weekly unemployment benefit amount.
Falck asks this court to conclude that her period of ineligibility began two weeks
later because she did not receive her first severance payment until September 4, 2020, and
that payment related to OCM’s biweekly pay period beginning August 17, 2020. She
contends that the applicable statute “does not anticipate the situation involved in this case,
where there is a gap” between the beginning of ineligibility and the receipt of severance
pay. Contrary to Falck’s contention, the plain language of the statute provides that the date
on which a severance payment is made or received is irrelevant. See id.; see also
Menyweather, 872 N.W.2d at 546-47 (affirming ineligibility despite gap of six weeks
between end of employment and receipt of severance pay).
Thus, the ULJ did not err by concluding that Falck was temporarily ineligible for
unemployment benefits for ten weeks beginning on August 2, 2020.

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II. Amount of Overpayment
Falck also argues that the ULJ erred by determining that the amount of her
overpayment is $4,440.
If an applicant is determined to be ineligible for unemployment benefits, any benefit
amounts previously paid constitute an overpayment. Minn. Stat. § 268.101, subd. 6 (2020).
A person who has received an overpayment “ must promptly repay the benefits.” Minn.
Stat. § 268.18, subd. 1(a) (2020).
In this case, there is no dispute that Falck received severance pay at a weekly rate
of $1,682, which exceeds her weekly benefit of $740. See Minn. Stat. § 268.085, subds.
3b(d), 3(c)(1). The ULJ concluded that Falck was overpaid $4,440 on the ground that she
received six weekly benefit payments of $740 during her ten-week period of ineligibility.
Falck contends that the $4,440 amount is incorrect because it exceeds the total
amount of unemployment benefits that she received. Falck is correct. In an affidavit
submitted with the department’s responsive brief, the department’s attorney states that, on
September 23, 2020 (the date of the determination of ineligibility), the department
deducted a total of $740 from the fifth and sixth benefit payments (corresponding to the
weeks beginning August 30, 2020, and September 6, 2020) as offsets to the overpayment
that was identified in the determination of ineligibility. The department is authorized by
statute to offset an applicant’s unemployment benefits to collect repayment of an
overpayment. Minn. Stat. § 268.18, subd. 3a(a). The department’s attorney further states
that the $740 in offsets “were credited to Falck’s account” but that the ULJ’s determination
of a $4,440 overpayment “did not take into account the offsets made for the weeks of
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August 30 and September 6.” The obvious conclusion to be drawn from these additional
facts is that, at the time of the ULJ’s November 2021 decision, the amount of Falck’s
overpayment was $3,700, not $4,440.
Thus, the ULJ correctly determined that there is an overpayment but incorrectly
stated the amount of the overpayment. At the time of the ULJ’s final decision, the amount
of the overpayment was $3,700.
Affirmed as modified.