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

JAMES L DUCKWORTH III, Claimant

TRADE ACT DECISION
Hearing No. 08606036MW


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 eligible for weekly Trade Readjustment Allowances or Health Coverage Tax Credit as of week 14 of 2008.

Dated and mailed January 8, 2009
duckwor . tsd : 110 : 2  TRA

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

This is a case in which a claimant failed to meet the Trade Act's "16/8-week deadline" because the Department of Workforce Development ("department") never provided him with any information about that deadline and his need to meet it. For the reasons discussed below, the commission concludes that it must affirm the decision denying the claimant eligibility for TRA payments.
 

Facts -- The claimant worked at Milsco Manufacturing, a unit of Jason, Incorporated. He was laid off from that job on October 22, 2007. He filed an initial claim for Unemployment Insurance benefits at that time.

At the time that the claimant was laid off, a petition was pending before the U. S. Department of Labor ("DOL") seeking to have Milsco certified as adversely affected by foreign trade, such that employees laid off there would have potential rights to benefits under the Trade Act. Several weeks after the claimant's layoff and application for UI benefits, DOL issued a determination granting that petition. This determination (Pet. No. TA-W-62382, issued on November 27, 2007) covered employees of "Milsco Manufacturing Company, a unit of Jason, Incorporated''.

The department was made aware of this determination at the time it was issued. The department took only two steps to attempt to inform eligible employees of Milsco about their potential benefit rights, and their procedural obligations, under the Trade Act. In early December, 2007, it sent a letter to Milsco asking for a list of workers separated from the company since October 2006, and it then mailed informational letters to the individuals on the list which Milsco provided to it. It also put an ad about the certification of Milsco and the potential for Trade Act benefits, in the "legal notices" category of the Milwaukee Sentinel's classified advertisement section.

The claimant's name was not included on the list that Milsco sent back to the department. As a result, he was not sent an informational letter. He did not see the legal notice which the department had placed in the newspaper classifieds.

Not surprisingly considering that no one had ever informed him of his potential eligibility for benefits under the Trade Act, the claimant did not make application for any such benefits during the months initially following his layoff. Unfortunately for him, during this period a critical legal deadline - of which the claimant was unaware - expired. Specifically, the Trade Act requires that in order to be eligible for weekly Trade Readjustment Allowances (TRA payments), a claimant must either be enrolled in approved training, be granted a waiver of the training requirement, or have completed approved training, by the later of the last day of the 16th week after the worker's most recent total separation from adversely affected employment, or the last day of the 8th week after the week in which the Secretary issues a certification covering the worker's employing unit. See, 19 U.S.C. § 2291(a)(5)(A)(ii)(I)-(II). Given the dates of the claimant's layoff and of the DOL certification of Milsco, the "8-week" deadline ran for the claimant on January 26, 2008 and the "16-week" deadline ran on February 16, 2008.  (1)

As of April 26, 2008, with the end of week 17 of 2008, the claimant exhausted his entitlement to UI benefits.

On May 9, 2008, the department mailed the claimant forms for applying for Trade Act benefits, along with a notice informing him that there was a deadline to apply. Claimant testified he never received this letter. (2)  On June 30, 2008, the department again sent claimant forms for applying for Trade Act benefits. The claimant received these, and he contacted the department. On July 8, 2008, the claimant met with a department representative and completed Trade Act application materials.
 

Discussion - Much of what was testified to at the hearing, and much of what the claimant addresses in his petition for review, concerns events occurring after the point at which the claimant completed application materials for Trade Act benefits. This included testimony about events relating to the claimant's request for a hearing on the department determination finding him ineligible, a request for hearing which was untimely but was eventually determined to have been so for a reason beyond claimant's control. The claimant sometimes seems to be confusing the issue about the Trade Act's "16/8-week" deadline, with the issue about the deadline for requesting a hearing from a department determination.

However, events occurring after the point at which the "16-week" deadline ran out for the claimant on February 16, 2008, are not relevant to the ultimate issue of the claimant's potential eligibility for TRA benefits. Once the "16-week" deadline ran out for the claimant on February 16, 2008, his potential entitlement to TRA benefits was irrevocably extinguished. See, DWD v. LIRC and Mary Robinson et al., 2006 WI App 241, 297 Wis. 2d 546, 725 N.W.2d 304.

It is clear that the reason the claimant did not meet the deadline was that he was not aware of it. As is discussed below, responsibility for this lies with the department, which had an obligation to inform the claimant about this deadline but failed to do so. However, the application of the "16/8-week deadline" may not be avoided on equitable grounds relating to the department's failures to inform claimants about the deadline.

[No]twithstanding the extent of the shortcomings in the department's compliance with its obligations to inform potential claimants of their rights and obligations concerning filing for benefits under the Trade Act, the commission cannot provide relief to this or any other claimant on that basis.

Christine L. Tracy (LIRC, Jan 27, 2005), rev'd on other grounds, DWD v. LIRC and Mary Robinson et al., 2006 WI App 241, 297 Wis. 2d 546, 725 N.W.2d 304. 
 

Department failure to provide information -- Although the department's failure to inform the claimant about the deadline may not be relied on as grounds to arrive at a different result in this matter, the commission believes that it is important to note here the extent of that failure, if only to remind the department of the nature of its obligations in this area.

As noted above, the department was made aware of the DOL's November 27, 2007 certification of Milsco under the Trade Act. All that the department did in order to notify potentially eligible individuals of the procedures (and deadlines) for obtaining Trade Act benefits, was to send letters to those individuals whose names were on a list submitted to the department by Milsco, and to place a classified ad in the Milwaukee Journal-Sentinel. Because the claimant's name was not on the list provided by Milsco, he did not receive any notice in time to meet the deadline.

At the hearing in this matter, the department's witness testified that sending letters to individuals named on lists provided by employers, and placing a classified ad in the paper, are "the only ways" the department is able to notify potentially affected individuals. The commission disagrees. These are not the "only" methods required; neither are they the "only" methods available.

The Trade Act and regulations promulgated thereunder contain a number of provisions which specifically require cooperating state agencies, such as the department, to timely provide information to persons who have a potential eligibility for benefits under the Trade Act, about the procedures and deadlines for applying for such benefits. Specifically, the Trade Act contains, in 19 U.S.C. § 2311(f), a requirement that:

Each cooperating State agency shall . . .
     (1) advise each worker who applies for unemployment insurance of the benefits under this chapter and the procedures and deadlines for applying for such benefits,

(emphasis added). In addition, regulations promulgated by DOL under the Trade Act incorporate and expand on this requirement:

20 C.F.R. § 617.4 Benefit information to workers.

(a) Providing information to workers. State agencies shall provide full information to workers about the benefit allowances, training, and other employment services available under Subparts B through E of this Part 617 and about the petition and application procedures, and the appropriate filing dates, for such allowances, training and services.

(b) Providing assistance to workers. State agencies shall provide whatever assistance is necessary to enable groups of workers, including unorganized workers, to prepare petitions or applications for program benefits.

(c) Providing information to State vocational education agencies and others. State agencies shall inform the State Board for Vocational Education or equivalent agency and other public or private agencies, institutions, and employers, as appropriate, of each certification issued under section 223 of the Act and of projections, if available, of the needs for training under section 236 of the Act as a result of such certification.

(d) Written and newspaper notices.

(1) Written notices to workers.

(i) Upon receipt of a certification issued by the Department of Labor, the State agency shall provide a written notice through the mail of the benefits available under subparts B through E of this part 617 to each worker covered by a certification issued under section 223 of the Act when the worker is partially or totally separated or as soon as possible after the certification is issued if such workers are already partially or totally separated from adversely affected employment.

(ii) The State agency will satisfy this requirement by obtaining from the firm, or other reliable source, the names and addresses of all workers who were partially or totally separated from adversely affected employment before the certification was received by the agency, and workers who are thereafter partially or totally separated within the certification period. The State agency shall mail a written notice to each such worker of the benefits available under the TAA Program. . .

(2) Newspaper notices.

(i) Upon receipt of a copy of a certification issued by the Department affecting workers in a State, the State agency shall publish a notice of such certification in a newspaper of general circulation in areas in which such workers reside. Such a newspaper notice shall not be required to be published, however, in the case of a certification with respect to which the State agency can substantiate, and enters in its records evidence substantiating, that all workers covered by the certification have received written notice required by paragraph (d)(1) of this section.

. . .
(e) Advice and assistance to workers. In addition to the information and assistance to workers as required under paragraphs (a) and (b) of this section, State agencies shall -

(1) Advise each worker who applies for unemployment insurance under the State law of the benefits available under subparts B through E of this part and the procedures and deadlines for applying for such benefits.

(2) Facilitate the early filing of petitions under section 221 of the Act and § 617.4(b) for any workers that the agency considers are likely to be eligible for benefits. State agencies shall utilize information received by the State's dislocated worker unit to facilitate the early filing of petitions under section 221 of the Act by workers potentially adversely affected by imports.

(3) Advise each adversely affected worker to apply for training under § 617.22(a) before, or at the same time as, the worker applies for trade readjustment allowances under subpart B of this part.

(4) Interview each adversely affected worker, as soon as practicable, regarding suitable training opportunities available to the worker under § 617.22(a) and review such opportunities with the worker.
 

20 C.F.R. § 617.10 Applications for TRA.
. . .
(d) Advising workers to apply for training. State agencies shall advise each worker of the qualifying requirements for entitlement to TRA and other TAA benefits at the time the worker files an initial claim for State UI, and shall advise each adversely affected worker to apply for training under subpart C of this part before, or at the same time, the worker applies for TRA, as required by § 617.4(e)(1) and (3).

(emphasis added). There are several notable things about these requirements.

First, both the Trade Act and the DOL regulations expressly and clearly require cooperating state agencies (including the Wisconsin Department of Workforce Development) to advise "each worker who applies for unemployment insurance benefits", about the benefits available under the Trade Act and about the procedures required to apply for such benefits, including the applicable deadlines. 19 U.S.C. § 2311(f), 20 C.F.R. § 617.4(a), (e)(1), 20 C.F.R. § 617.10(d). It also requires the state agencies to do this at the time the worker files his initial claim for UI benefits. 20 C.F.R. § 617.10(d).

Significantly, in creating this requirement the Act and the regulations use the phrase "each worker", not the phrase "each adversely affected worker" which is used in other parts of the law and regulations. This clearly means, that the requirement extends not merely to individuals known to the department to be adversely affected workers (i.e., workers separated from employment with a certified, adversely affected employer), but to all workers. In other words, everyone filing an initial claim for UI benefits should be getting information about the Trade Act and its potential benefits -- and deadlines.

There is no evidence in the record here, that any information about Trade Act benefits and procedures was provided to the claimant in this case when he filed his initial claim for benefits. In the absence of any such evidence, the conclusion which the commission draws is that when the claimant filed his initial claim for UI benefits, the department did not provide him with any information about Trade Act benefits and procedures (including deadlines), thus failing to comply with 19 U.S.C. § 2311(f), 20 C.F.R. § 617.4(e)(1), and 20 C.F.R. § 617.10.

Second, while the regulations do contain provisions describing two specific steps (direct mail notice and newspaper ads) which a state agency may take to provide information about potential Trade Act benefit eligibility for workers of any particular employer certified by DOL as having been adversely affected, merely taking these two steps does not necessarily suffice to meet the agency's obligations. The applicable regulation, in 20 C.F.R. § 617.4, contains:

in subs. (a,) a general obligation to provide information; 

in subs. (b), a general obligation to provide assistance; 

in subs. (c), an obligation to provide information to State vocational education agencies and other third parties;

in subs. (d), an obligation to provide both individual written notice, and newspaper notice; and,

in subs. (e), an obligation - expressly described as being "[i]n addition to the information and assistance to workers as required under paragraphs (a) and (b) of this section" -- to advise each worker who applies for UI about the benefits, procedures and timelines, facilitate early filing of petitions, advise adversely affected workers to apply for training, and interview such workers regarding suitable training.

In addition, as noted above, a separate regulation contained in § 617.10(d) repeats the requirement that state agencies advise "each worker" about the Trade Act benefits and procedures at the time of initial UI claims.

The provision of direct written notice and newspaper notice, may satisfy the obligations described in 20 C.F.R. § 617.4(d), but it is impossible to look at this regulatory scheme and conclude that if that is all that an agency does, it is sufficient. Particularly considering the express requirement for providing general information to all applicants for UI benefits, it is most reasonable to conclude that choosing to rely only on the direct written notice and newspaper notice methods described in 20 C.F.R. § 617.4(d), is distinctly insufficient.

Third, the sufficiency of the department's compliance even with the direct written notice procedure in this case, is questionable.

The department's witness testified that the department sent a letter to Milsco requesting a list of workers who had been separated from the company since the impact date specified in the DOL certification. Conspicuously absent from that testimony, though, is any indication that the department took any steps to check the information that was returned to it by Milsco. Obviously, the list returned by Milsco was incorrect, in that it failed to list the claimant, even though he had been laid off from Milsco during the impact period and before the time of the department's request.

The department's position is presumably that if it relies on the information provided to it by the employer, it has done all that is required of it. However, a reading of the applicable regulation will not support this position. After describing in 20 C.F.R. § 617.4(d)(1)(i) the obligation to provide a written notice to each worker covered by a certification, the regulation continues in § 617.4(d)(1)(ii) by providing that a state agency:

will satisfy this requirement by obtaining from the firm, or other reliable source, the names and addresses of all workers who were partially or totally separated from adversely affected employment before the certification was received by the agency, and workers who are thereafter partially or totally separated within the certification period.

(emphasis added). This provision does not state, that an agency will be deemed to have satisfied the requirement to provide notice if it sends such notice to everyone on the list provided by the employer. Rather, it states that it will be deemed to have satisfied the requirement to provide notice if it obtains from the employer, or other reliable source, the names and addresses of all workers potentially eligible as a result of having been separated from employment. On the face of this language, if the list provided by the employer is inaccurate in failing to list all affected workers, then the state agency cannot be deemed to have satisfied this requirement. The evidence in the record here, is that the list provided by Milsco was inaccurate, in that it failed to list the claimant. Thus, the department did not "obtain from the employer ... the names and addresses of all workers potentially eligible as a result of having been separated from employment", within the meaning of 20 C.F.R. § 617.4(d)(1)(ii).

The commission recognizes, that the department cannot be charged with responsibility for the inaccuracy in the information provided by Milsco. However, it can be charged with responsibility for choosing to rely exclusively on that information, where the applicable regulation looks to it to obtain accurate information either from the employer or from some "other reliable source", and there is another such reliable source. That source is the department's own records. When laid off workers apply for UI benefits, the department makes an initial monetary computation regarding their potential UI benefit rights, which includes determining where they have worked during their "base period". See, Wis. Stat. § 108.09(2)(a). This occurred when the claimant here filed his initial claim for UI benefits in late October, 2007. Department records reflect that in connection with determining the extent of his potential eligibility for UI benefits, the department would have learned at that time that the claimant had been employed by Jason, Inc., employer account number 516003, during his base period prior to his layoff. The department would have known the calendar quarters in which the claimant had worked for Milsco, and the amount of his earnings. When the department was then informed in late November, 2007, that DOL had issued a certification under the Trade Act affecting employees of Milsco Manufacturing, a unit of Jason, Incorporated, it thus clearly had in its own records the information necessary to allow it to determine that the claimant, among others, ought to be provided the direct mail notice contemplated by 20 C.F.R. § 617.4(d)(1)(i).

Using information it already has available to it to supplement information from employers appears to be something which the department could do. Considering the scope of the obligations on the department to provide information to potential claimants, and considering as well the unforgiving nature of the deadlines in question, it is clearly something which the department ought to do.

cc: Milsco Mfg. Co.



[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


Footnotes:

(1)( Back ) The commission notes that the department's determination and appeal tribunal decision also mention, and apparently assume to have been applicable, another related provision, found in 19 U.S.C. § 2291(a)(5)(A)(ii)(III), which allows the 16-week and 8-week deadlines to be extended by 45 days in certain circumstances. The commission believes that the assumption that this provision is applicable, was erroneous. The 45-day period applies "if the Secretary determines there are extenuating circumstances that justify an extension in the enrollment period." The "Secretary" referred to is the U. S. Secretary of Labor. The Secretary's authority to make this kind of determination is not one which is delegated to cooperating state agencies. There is no evidence that the U. S. Secretary of Labor ever made a determination that the 45-day extension would be applicable to former employees of Milsco.

This ends up not making a difference in this case, though, because even if that later deadline applied, it ran out on April 1, 2008, and the claimant missed it as well.

(2)( Back ) It is not clear why DWD sent this letter at this time. The department witness testified that he did not know why it was sent out. It is possible it occurred because after exhausting his UI, the claimant contacted to department and someone finally noticed that there might be some potential Trade Act benefit eligibility. On the other hand, it is possible that it occurred because the department already knew that there was some potential Trade Act benefit eligibility but had a system in place in which it waited until UI benefits were exhausted to send out information to potential claimants. For the reasons discussed below, this ends up not making a difference in this case.

 


uploaded 2009/01/12