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

JENNIFER L. MENKE, Claimant

TRADE ACT DECISION
Hearing No. 04004649OS


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, in week 32 of 2004 the employee is ineligible for a weekly benefit payment of $313. The employee is required to repay the sum of $313 to the department, if she has not already done so.

Dated and mailed January 11, 2005
menkeje . tsd : 110 : 4  TRA

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The Trade Act provides that in order to be eligible to receive weekly TRA payments, a claimant must either be enrolled in approved training, have completed a course of such training, or have been granted a waiver of the training requirement. The claimant in this case was satisfying this requirement by attending an approved course of training at Moraine Park Technical College. This case concerns a question about the claimant's eligibility for TRA payments for the weeks between the end of the summer session and the beginning of the fall semester when she was not actually attending class because she was between terms of her program.

For claimants who are satisfying the training requirement provisions of the Trade Act by being enrolled in training, an issue is presented as to whether they can be considered to be participating in their training during periods when, due to breaks in the program for holidays or between terms, they are not actually attending class. This issue is covered by the "breaks in training" provision of the Trade Act, which is found in 19 U.S.C. § 2293(f). The breaks in training provision states that a claimant shall be treated as participating in training during any week which is part of a break in training when the claimant was participating in the training before the break and the break is provided for under the training program, if the break does not exceed a certain number of days.

Originally, the break in training provision allowed continued payment of TRA during breaks in training of up to 14 days in length. Amendments to the Trade Act enacted in November, 2002, changed the breaks in training provision to allow continued payment of TRA during breaks of up to 30 days in length. However, these amendments applied only to claimants whose eligibility for benefits arose under petitions for certification filed on or after the 90th day following enactment of the amendments ("new" petitions). In this case, the claimant's eligibility arose under a petition which had been filed before that date, so she continued to be subject to the provisions of the Trade Act as they existed before the amendments -- including the limitation of the breaks in training provision to breaks of only up to 14 days. The break in the claimant's training here was 26 days. (1)    It is thus clear that the claimant was not eligible for TRA payments for the weeks during that break when she was not attending classes.

The important issue in this case has to do with the fact that the claimant might have ended up being eligible for TRA benefits for the weeks in question if the department had not failed in a number of respects to provide her with accurate information about what she needed to do to remain eligible.

As the ALJ correctly noted, citing 20 CFR § 617.20 ("Responsibilities for the delivery of reemployment services"), there are a number of provisions of federal law which impose on state agencies such as the department the responsibility to provide Trade Act claimants with information about their rights and entitlements under the Trade Act. See also, 19 U.S.C § 2311(f) ("Advising and interviewing adversely affected workers"), 20 C.F.R. § 617.4 ("Benefit information to workers"). And as the ALJ also correctly noted, the department failed to meet those responsibilities with respect to the claimant here. Thus, the claimant was misinformed by one department representative that she did not have to worry about a break in training because she was under an "old" petition and it did not matter if she was off for a month -- a description of the law which was completely backwards. When the claimant contacted the department in the summer of 2004 to ask what if anything she needed to do in order to maintain her eligibility during the break in training between the summer session and the fall semester, another department representative responded to her by providing her with standardized advice, designed with claimants subject to the 30-day break in training rule in mind, that she simply needed to have her instructors sign her weekly TRA sheets for the days she would be off school. Most importantly, a department representative failed to send the claimant information, which she normally sent to claimants facing a break in training, advising as to how claimants could cover the break by engaging in other available short-term training activities during the break which would qualify as approved training under the Trade Act and thus maintain their eligibility. If the claimant had been provided this information, she could have taken advantage of those opportunities, and having done so, she would have been eligible for benefits in the weeks in question.

The commission however agrees with the ALJ that, notwithstanding these failures by the department, there is no basis upon which the claimant can now be determined to be eligible for TRA benefits for the weeks in question.

As noted above, the Trade Act provides that to be eligible to receive weekly TRA payments, a claimant must either be in approved training, have completed a course of such training, or have been granted a waiver of the training requirement. Thus, it might be asked whether the claimant could have been granted a waiver of the training requirement for the weeks in question, such that her eligibility for TRA payments could have been maintained during those weeks on that basis. However, the ALJ correctly observed, that the Trade Act does not appear to allow appellate tribunals (such as the ALJ or the commission) to address a situation such as this by deciding that the claimant should have been granted a waiver of the training requirement. The decision of whether to grant a waiver of the training requirement under 19 U.S.C. § 2291(c) is one to be made by the department, acting pursuant to the authority delegated to it by the Secretary of Labor under formal agreements as provided for in 19 U.S.C. § 2311. Neither the ALJ nor the commission can change the outcome in this case by deciding that a waiver of the training requirement should be granted for the weeks in question.

Even though the department failed to meet its responsibility to provide correct and timely information to the claimant, information which (had she received it) would probably have led her to take steps to continue in alternate training during her between-terms break with the result that she would have been eligible for benefits, equitable estoppel cannot be applied against the department to arrive at a different outcome. This is because that outcome would be contrary to the specific language of the law concerning the time limit on breaks in training. This conclusion is effectively required by 20 CFR § 617.50(d), which provides that "no provision of State law or regulations on good cause for waiver of any time limit, or for late filing of any claim, shall apply to any time limitation referred to or specified in this part 617, unless such State law or regulation is made applicable by a specific provision of [these regulations]". This regulation was adopted by the Department of Labor in direct response to a U.S. Court of Appeals decision allowing a waiver of a Trade Act timeline based on a failure by a state agency to properly provide information to a group of claimants which resulted in their loss of benefit eligibility. The purpose of the regulation is clearly to preclude the use of failures by a state agency as a justification for avoiding the application of the provisions of the Act.

Finally, the ALJ also correctly concluded that the overpayment could not be waived. TRA payments are not subject to the provisions of the Wisconsin UI Act concerning waivers of recovery of unemployment insurance overpayments based on "department error". Rather, they are subject to the provisions of the Trade Act, and its regulations, which differ significantly from those in the UI Act. See, 19 U.S.C. § 2315, 20 C.F.R. § 617.55. Those provisions, as the ALJ noted, require not only a finding that the overpayment was made without fault of the claimant, but also a finding that requiring repayment of the overpayment would be "contrary to equity and good conscience". The commission agrees with the ALJ, that the circumstances of the claimant's case did not meet the requirement, under the "contrary to equity and good conscience" standard, that recovery of the overpayment create an extraordinary financial hardship enduring for at least three months.

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



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Footnotes:

(1)( Back ) The claimant's last day of classes in the 2004 summer session was July 28, 2004. Her first day of classes in the fall semester was August 23, 2004.

 


uploaded 2005/01/18