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District’s Emergency Unemployment Compensation Statute Properly Implemented

Bishop v. District of Columbia Dept. of Employment Services
No. 10-AA-250 (D.C. 2011)

by Lindsey M. Brunk, Summer Associate
Semmes, Bowen & Semmes (

Under D.C. CODE § 51-107(c)(1)(C), an individual requesting unemployment benefits is not eligible for those benefits if his total base period wages did not exceed his highest quarter wages by 1½ times. However, under a different subsection of this same statute, § 51-107(c)(2), the District of Columbia Department of Employment Services (“DOES”) is permitted to disregard the highest quarter wages if they make the individual ineligible for unemployment benefits. When Mr. Verdova Bishop applied for unemployment benefits, his total base period wages did not exceed his highest quarter wages by one and one half (1½ ) times, but DOES nevertheless allowed him to receive unemployment benefits by disregarding his highest quarter.

Once Mr. Bishop’s benefits ran out, he sought Emergency Unemployment Compensation. Under D.C. CODE § 51-107(g)(3)(c), again, individuals are required to have the total base period earnings exceed the highest quarter earnings by 1½ times. However, there is no distinct provision that grants DOES the ability to disregard the highest quarter wages for emergency unemployment benefits, as it did for regular unemployment benefits. As such, Mr. Bishop was forced to attack the validity of the statute itself if he were to receive any continued benefits.

Mr. Bishop argued before the Court of Appeals that the District of Columbia erred in implementing the federally-funded Emergency Unemployment Compensation program. Under the Emergency Unemployment Act of 2008, 26 U.S.C. § 3304, the “terms and conditions of the State law which apply to claims for regulation compensation…shall apply to claims for emergency unemployment compensation and the payment thereof, except” that an individual must have worked twenty (20) weeks of full-time insured employment or the equivalent in insured wages during the individual’s base period. Each state is permitted to choose from two (2) different methods of determining what constitutes the “equivalent in insured wages.” Federal-State Extended Unemployment Act of 1970, P.L. 91-373 § 202(a)(5). It can be “one or more” of either earnings “which exceed 40 times the individual’s most recent weekly benefit amount or 1½ times the individual’s insured wages in that calendar quarter of the base period in which the individual’s insured wages were the highest….” Id. Mr. Bishop argued that the District of Columbia was not free to only use the 1½ times calculation method, but must also permit the other method.

The Court of Appeals disagreed. The Court held that the “one or more” language in the Federal-State Extended Unemployment Act of 1970 made clear that the District was free to choose between the two methods, which they properly did. Furthermore, no where in the federal statutes was there a requirement that the Courts be permitted to disregard the highest quarter pay if it rendered an individual ineligible for benefits. As such, the District of Columbia’s statutes were valid, and Mr. Bishop was not entitled to emergency unemployment benefits.