( Id. at p. 218.) Finally, Molnar relies on Social Security Board v. Nierotko (1946) 327 U.S. 358 [66 S.Ct. 637, 90 L.Ed. 718, 162 A.L.R. 1445] and Kerin v. Unemployment Ins. Appeals Bd. (1978) 87 Cal.App.3d 146 [ 150 Cal.Rptr. 751]. In Nierotko, the United States Supreme Court held an award of backpay to a wrongfully discharged employee qualified as wages for social security calculations, even though the employee had not worked.
This conclusion is supported by other California case law. In Kerin v. Unemployment Ins. Appeals Bd., 87 Cal. App. 3d 146, 150 (1978), the court noted that severance or dismissal pay has been held to wages, citing Bradshaw v. Cal. Emp't Stabilization Comm'n, 46 Cal. 2d 608 (1956). In Takaesu v. Computer Sciences Corp., No. B167707, 2005 WL 704931, at *13 (Cal. App. Mar. 29, 2005), although the court cited Battista, the court explained that a severance payment falls under the definition of "wages" because the employee was required to perform labor before becoming eligible for the payment.
The analogous U.S. Supreme Court decision in Nierotko, policy reasons and case law from other jurisdictions all point to the need to expand the McClellan rule and to define clearly the character of back pay awards in subsequent unemployment compensation claims. See Kerin v. California Unemployment Insurance Appeals Board, 87 Cal.App.3d 146, 150 Cal.Rptr. 751 (1978) (back pay award treated as wages for purposes of determining wage credits and credit weeks); Hiserote Homes, Inc. v. Riedemann, 277 N.W.2d 911 (Iowa 1979) (back pay award is "wages" and claimant is therefore unable to receive unemployment compensation for back pay period); White v. Commonwealth, 36 Pa. Commw. 258, 387 A.2d 943 (1978) (back pay constitutes "wages"); Griggs v. Sands, 526 S.W.2d 441 (Tenn. 1975) (back pay constitutes "wages" and therefore disentitles claimant to unemployment compensation benefits); Texas Employment Commission v. Busby, 457 S.W.2d 170 (Tex.Civ.App. 1970) (back pay constitutes "wages"; claimant must repay unemployment compensation payments made during back pay period).