HOWARD GIBSON, Claimant
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 makes the following:
The claimant worked for about three years as a stacker and roll tender for a printing business. His last day of work was July 14, 2006 (week 28). He subsequently initiated a claim for benefits under the Trade Act.
The department approved a course of training for the claimant. Pursuant to this approval, the claimant enrolled in a training program for basic skills and in welding. He completed this training program on May 23, 2008 (week 21).
The claimant subsequently requested approval for another course of training, which would involve more basic skills training, followed by a two-year training program in welding technology. This course of training was to have begun on August 25, 2008. The department denied approval for this proposed second course of training. The rationale stated by the department's determination was that the claimant had completed an approved training program, and that he would not have TRA benefits to successfully complete a new program.
The issue for decision is whether this request for approval of training was appropriately denied.
Trade Act assistance in the development of and payment for training programs is not an absolute entitlement; by law it can be approved and paid only if certain conditions, described in the Trade Act, are met. The Trade Act sets out the standards which must be met for training to be approved, in 19 U.S.C. § 2296:
§ 2296. Training (a) Approval of training; limitation on expenditures; reasonable expectation of employment; payment of costs; approved training programs; nonduplication of payments from other sources; disapproval of certain programs; exhaustion of unemployment benefits; promulgation of regulations.
(1) If the Secretary (1) determines that -
(A) there is no suitable employment (which may include technical and professional employment) available for an adversely affected worker,
(B) the worker would benefit from appropriate training,
(C) there is a reasonable expectation of employment following completion of such training,
(D) training approved by the Secretary is reasonably available to the worker from either governmental agencies or private sources (which may include area career and technical education schools, as defined in section 3 of the Carl D. Perkins Career and Technical Education Act of 2006 [20 USCS § 2302], and employers)[,]
(E) the worker is qualified to undertake and complete such training, and
(F) such training is suitable for the worker and available at a reasonable cost,
the Secretary shall approve such training for the worker. Upon such approval, the worker shall be entitled to have payment of the costs of such (subject to the limitations imposed by this section) training paid on his behalf by the Secretary directly or through a voucher system. Insofar as possible, the Secretary shall provide or assure the provision of such training on the job, which shall include related education necessary for the acquisition of skills needed for a position within a particular occupation.
A regulation promulgated by the Department of Labor, 20 C.F.R. 617.22 (a)(5), provides guidance on the interpretation and application of the training program approval requirement that "the worker is qualified to undertake and complete such training." It states:
(i) This emphasizes the worker's personal qualifications to undertake and complete approved training. Evaluation of the worker's personal qualifications must include the worker's physical and mental capabilities, educational background, work experience and financial resources, as adequate to undertake and complete the specific training program being considered.
(ii) Evaluation of the worker's financial ability shall include an analysis of the worker's remaining weeks of UI and TRA payments in relation to the duration of the training program. If the worker's UI and TRA payments will be exhausted before the end of the training program, it shall be ascertained whether personal or family resources will be available to the worker to complete the training. It must be noted on the worker's record that financial resources were discussed with the worker before the training was approved.
(iii) When adequate financial resources will not be available to the worker to complete a training program which exceeds the duration of UI and TRA payments, the training shall not be approved and consideration shall be given to other training opportunities available to the worker.
The claimant received and exhausted his entitlement to "basic TRA" payments while in his first course of approved training. He then began receiving "additional TRA" payments (2), and had come close to exhausting his entitlement to them. The claimant's entitlement to further TRA payments would have extended only to week 47 of 2008, but the training program he was seeking to have approved would have extended into 2010. This created a significant question as to whether "adequate financial resources [would] be available to the worker to complete a training program", in the words of the regulation. The claimant's only evidence bearing on this was his testimony that he was going to continue the training "if" he could get a part-time job, and that he had worked a part-time restaurant job while he was in his previous course of training. Of course, during that time, he also still had TRA eligibility and this would have supplemented his earnings from part-time employment. Considering that he would no longer have any TRA eligibility in the continued training he sought, and considering also that he did not say that he had a part-time job lined up but simply that he wanted to continue the training if he could find a part-time job, it was a reasonable conclusion that, for financial reasons, the claimant was not "qualified to undertake and complete such training."
The regulations governing approval of training under the Trade Act also provide for limitations relating to length of training. 20 C.F.R. 617.22 provides:
(f) Length of training and hours of attendance. The State agency shall determine the appropriateness of the length of training and the hours of attendance as follows:
(1) The training shall be of suitable duration to achieve the desired skill level in the shortest possible time;
(2) Length of training. The maximum duration for any approvable training program is 104 weeks (during which training is conducted) and no individual shall be entitled to more than one training program under a single certification.
(3) Training program. (i) For purposes of this Part 617, a training program may consist of a single course or group of courses which is designed and approved by the State agency for an individual to meet a specific occupational goal.
(emphasis supplied). At the time that he was seeking approval of the course of training at issue here, the claimant had already completed a course of approved training. Under this regulation, he was not entitled to approval of and assistance for another training program.
The claimant's request for approval of training was therefore appropriately denied.
The department continued to send checks to the claimant for the two weeks after his first course of approved training ended with the end of the semester in week 21 of 2008. However, because the claimant was no longer enrolled in approved training in those weeks, he was not eligible for those payments. This resulted in an overpayment to the claimant in the amount of $710.
The commission therefore finds that the claimant is not eligible, pursuant to and under the standards stated in 19 U.S.C. § 2296, for approval of further training and Trade Adjustment Assistance (TAA) for such training.
The commission further finds that the claimant is not eligible, pursuant to and under the standards stated in 19 U.S.C. § 2293(a)(3), for further additional Trade Readjustment Allowances (TRA) after week 21 of 2008.
The commission further finds that the claimant was paid additional TRA in the amount of $710 for weeks 22 and 23 of 2008, for which he was not eligible and to which he was not entitled, within the meaning of section 243 of the Trade Act of 1974, and that he is required to repay such sum.
The Findings of Fact and Conclusions of Law of the administrative law judge are modified to conform with the foregoing and, as modified, the decision of the administrative law judge is affirmed. Accordingly, the claimant is ineligible for further TAA or TRA. The claimant is required to repay the sum of $710 to the department.
Dated and mailed October 8, 2008
gibsonh . trr : 110 : 8 TRA
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
NOTE: Although it arrives at the same result as did the ALJ, the commission has substituted its own Findings of Fact and Conclusions of Law for those issued by the ALJ in order to accurately describe the relevant facts and the relevant law, in the following respects:
The ALJ's decision stated that the claimant's TAA eligibility would expire in November, 2008. In fact, the problem in this case was that the claimant's eligibility for weekly TRA payments was going to expire at that time.
The ALJ's decision also stated that the claimant would be unlikely to successfully complete the proposed training program without funding for the estimated $12,000 cost. In fact, the problem in this case was that the claimant would be unlikely to successfully complete the proposed training program without weekly TRA payments. The $12,000 cost referred to by the ALJ was the cost of the training itself (i.e., tuition, books), which would have been paid in the form of TAA if the training had been approved.
The ALJ's decision concluded that the claimant "was not eligible for further training, within the meaning of section 231(a) of the Trade Act of 1974". The section of the Trade Act cited by the ALJ, corresponds to 19 U.S.C. § 2291(a), which describes the conditions of eligibility for TRA payments. In fact, the provision of the Trade Act which describes the conditions for approval of training programs, is found in 19 U.S.C. § 2296.
____________________________
Federal law allows a waiver of an overpayment of Trade Readjustment Allowances under certain circumstances (described below). To obtain a determination on whether such a waiver can be granted, the claimant must file an application for a waiver. An application for waiver form can be obtained by sending a request to Unemployment Compensation Division, TRA Unit, P.O. Box 7965, Madison, WI, 53707
cc: Quebecor World Rai, Inc. - St. Cloud, MN 56304-9627
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