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

THOMAS J HACKBARTH SR, Claimant

TRADE ACT DECISION
Hearing No. 04202805EC


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 required to repay the sum of $658.00, as more particularly set forth in the initial determination.

Dated and mailed March 30, 2005
hackbto . tsd : 110 : 1   TRA

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The claimant was paid TRA benefits that it turned out he was not legally entitled to because he had not been employed with his employer for enough weeks to qualify for them. He was paid those benefits because of a mistake by a department employee. The claimant believes that since he was paid the benefits as a result of a mistake by a department employee, and since he himself was not in any way responsible for that mistake, he should not now have to repay the benefits.

The claimant's viewpoint is understandable. Indeed, the Wisconsin Legislature decided that, where state unemployment insurance benefits were concerned, if there was a benefit overpayment that was the result of an error by the department and the claimant who received the benefits was not at fault, the claimant would not be required to repay those benefits. See, Wisconsin Statutes § 108.22(8).

However, this case did not involve state unemployment insurance benefits, but TRA payments under the Trade Act, a federal law. In that law, the U.S. Congress has taken a different view regarding repayment of overpaid benefits, than the Wisconsin Legislature has taken regarding overpaid unemployment benefits. Congress wrote the Trade Act to provide that an overpayment could be waived only it would be "contrary to equity and good conscience" to require repayment. See, 19 United States Code § 2315. The United States Department of Labor has also issued regulations defining the "contrary to equity and good conscience" test, and those regulations provide very stringent standards under which, among other things, it cannot be found that requiring repayment would be "contrary to equity and good conscience" unless it would create "extraordinary financial hardship", which the regulations state would occur "if recovery of the overpayment would result directly in the person's or individual's loss of or inability to obtain minimal necessities of food, medicine, and shelter for a substantial period of time". See, 20 Code of Federal Regulation § 617.55(2). That simply was not shown here.

The department, and the commission, are bound by the federal law written by Congress and by the federal regulations adopted by the U.S. Department of Labor. The federal law and regulations require the commission to affirm the decision, that the requirement that the claimant repay the benefits he was erroneously paid, cannot be waived.

cc: Manitowoc Cranes



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