STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

BRIAN E. SPEICH, Claimant

TRADE ACT DECISION
Hearing No. 04201969EC


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the claimant is not granted relocation allowances as of week 30 of 2004.

Dated and mailed November 8, 2004
speicbr . tsd : 110 :   TRA

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

Under the Trade Act, a claimant may in certain circumstances be eligible for payment of a relocation allowance, to cover the costs and expenses of moving to a different area. The Trade Act provides, in 19 U.S.C. § 2298, as follows:

§ 2298 Relocation allowances (a) Relocation allowance authorized. (1) In general. Any adversely affected worker covered by a certification issued under subchapter A of this chapter [19 USCS § § 2271 et seq.] may file an application for a relocation allowance with the Secretary, and the Secretary may grant the relocation allowance, subject to the terms and conditions of this section.

(2) Conditions for granting allowance. A relocation allowance may be granted if all of the following terms and conditions are met:

(A) Assist an adversely affected worker. The relocation allowance will assist an adversely affected worker in relocating within the United States.

(B) Local employment not available. The Secretary determines that the worker cannot reasonably be expected to secure suitable employment in the commuting area in which the worker resides.

(C) Total separation. The worker is totally separated from employment at the time relocation commences.

(D) Suitable employment obtained. The worker--

(i) has obtained suitable employment affording a reasonable expectation of long-term duration in the area in which the worker wishes to relocate; or

(ii) has obtained a bona fide offer of such employment.

(E) Application. The worker filed an application with the Secretary before--

(i) the later of--

(I) the 425th day after the date of the certification under subchapter A of this chapter [19 USCS § § 2271 et seq.]; or
(II) the 425th day after the date of the worker's last total separation;

or

(ii) the date that is the 182d day after the date on which the worker concluded training, unless the worker received a waiver under section 231(c) [19 USCS § 2291(c)].

(emphasis added). The Department of Labor's regulations concerning relocation allowances also reflect the requirement that the claimant have obtained employment or an offer of employment. 20 C.F.R. § 617.2 provides:

§ 617.42 Eligibility. (a) Conditions. Eligibility for a relocation allowance requires:

(1) A timely filed application;

(2) Total separation from adversely affected employment at the time relocation commences;

(3) No prior receipt of a relocation allowance under the same certification;

(4) Relocation within the United States and outside the individual's present commuting area;

(5) Registration with the State agency which shall furnish the individual such reemployment services as are appropriate under Subpart C of this Part 617;

(6) A determination by the State agency that the individual has no reasonable expectation of securing suitable employment in the commuting area, and has obtained suitable employment affording a reasonable expectation of employment of long-term duration, or a bona fide offer of such suitable employment, outside the commuting area and in the area of intended relocation. For the purposes of this section, the term "suitable employment" means suitable work as defined in § 617.3(kk) (1) and (2), whichever is applicable to the individual; and

(7) Relocation beginning within a reasonable period, as determined under § 617.43(b), and completion of such relocation within a reasonable period of time as determined in accordance with Federal travel regulations and § 617.43(a).

(emphasis added).

In this case, the claimant relocated to Arizona in 2002, without having obtained employment or an offer of employment there. He went to Arizona with the idea of attending school and completing a course of study which would help him find a job. The claimant did attend school for a time, but he ended up being unable to complete his course of study due to becoming disabled. He has also not obtained any employment in Arizona.

It is clear that the claimant cannot receive relocation allowances under the Trade Act. When he relocated to Arizona, he had neither employment there nor an offer of employment there, and he has never obtained employment there or an offer of employment there.

The claimant's rationale appears to be, that he relocated to engage in training which could help him get a job, that if it had not been for unanticipated events (his disability) he could have completed the training and gotten a job, which is the point of the relocation benefit, and that therefore it is only fair for him to receive the relocation benefit now to cover the expenses he incurred in relocating. This rationale is not persuasive. First, as noted above, the clear and express language of the statute and the regulations simply does not allow payment of relocation benefits in this situation. Second, the claimant's fairness argument is unconvincing. The claimant could and should have determined, before he incurred the expenses of relocating to Arizona, whether those expenses could be paid under the Trade Act. If he had made an attempt to inform himself about this, he would have learned that he needed to have employment or an offer of employment in Arizona before an application for relocation benefits could be approved.

For the foregoing reasons, the commission agrees with and has affirmed the decision of the ALJ.

cc: Stora Enso


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