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

KIM M SCHNEIDER, Claimant

TRADE ACT DECISION
Hearing No. 09402034AP


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's request for training is denied.

Dated and mailed December 9, 2009
schneid . tsd : 110 : 5

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION

The Trade Act provides that training may only be approved if, among other things, there is no "suitable employment" available for the adversely affected worker in question. 19 U.S.C. 2296(a)(1)(A). It also provides that "suitable employment" means "work of a substantially equal or higher skill level than the worker's past adversely affected employment, and wages for such work at not less than 80 percent of the worker's average weekly wage." (emphasis added). 19 U.S.C. 2296(e). The claimant's "average weekly wage" is based on what she was paid in her previous employment with the adversely affected employer, Kohler Company. (1)

The commission agrees with the ALJ, that the claimant's current employment is "of a substantially equal or higher skill level than the worker's past adversely affected employment." It also agrees with the ALJ, that the differences in fringe benefits which the claimant has asserted do not mean that her wages in her work through Manpower are less than 80 percent of the her "average weekly wage" based on her wages at Kohler. The claimant was paid $20.74/hour at Kohler, where she worked full-time. In her current employment through Manpower, also full-time, the claimant is paid $20.00/hour, over 96% of her previous rate.

The commission does not credit the claimant's assertion, that the total value of her annual benefits with Kohler was $12,471.09. The source of this particular figure is not apparent, and the commission concludes that the weight of the evidence is not adequate to support this assertion. Additionally, the claimant's evidence shows that a very significant proportion of what she identifies as her benefit package consists of Kohler's payment of legally required tax contributions for things such as Social Security, Medicare, and other payroll taxes. See, Ex. 7. An employer's payment to the government of required taxes on employment cannot be considered payment of "wages" to an employee. Another significant part of what the claimant identifies as her benefit package was a tuition reimbursement program. The commission does not believe that any such amounts, if paid, would constitute wages for services in employment. In any event, while the claimant indicated that she would have been starting classes subject to that program, there was no evidence that she actually received anything through this program during the calendar quarters on which calculation of her "average weekly wage" would be based. Thus, it cannot figure into determining her "average weekly wage."

For the foregoing reasons, and those stated by the ALJ, the commission agrees with and adopts the decision of the ALJ.

 

cc: Kohler Co.

 


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Footnotes:

(1)( Back ) The ALJ looked to the definition of wages found in the Wisconsin Unemployment Insurance Act. Applicable definitions are also found in the Trade Act and in the federal regulations applying that Act. See, 19 U.S.C. 2319 (4), 20 C.F.R.   617.3(f), 20 C.F.R. 617.3 (pp). These definitions derive the "average weekly wage" from wages paid for services in employment for the adversely affected employer during certain past calendar quarters. Ibid.

 


uploaded 2009/12/14