I agree with the majority that the WARN payments to appellant were not separation pay which should offset her unemployment benefits under R.C.4141.31(A)(4). In addition to the reasons cited by the majority, I would also note that the WARN payments to appellant were not made at the time of [the employee's] separation from employment but only began some two months later. R.C. 4141.31(A)(4) only permits a reduction of benefits for severance pay which is paid at the time of separation.
On the other hand, I disagree with the majority's conclusion that the WARN payments here were remuneration in lieu of notice which should reduce appellant's unemployment compensation benefits under R.C.4141.31(A)(1). This term is defined by Ohio Admin. Code 4141-9-08 as a continuation of wages for a designated period after termination of employment. While most WARN payments will probably meet this definition, the payments here cannot be considered a continuationof wages because they did not even begin until some two months after appellant's employment was terminated. Moreover, in this case, the payments were not made in lieu of notice of the termination because there is no evidence appellant here was entitled to notice at the time her own employment was terminated; that right only arose because of the subsequent plant closing.
Therefore, I would find that under the unique circumstances of this case, the WARN payments made to appellant should not reduce her unemployment compensation benefits. Accordingly, I would reverse and remand with directions for the common pleas court to vacate the review commission's decision requiring appellant to repay a portion of the benefits she received. *Page 282