KERRY A STAMM, 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 121/2 years as a production worker and extrusion machine operator for a manufacturer of electrical products in Monroe. His last day of work was November 20, 2003 (week 47), when he was laid off due to lack of work. He began a claim for unemployment benefits (UI) on December l, 2003 (week 49) after another job ended.
The claimant's former employer had been certified on November 21, 2002 as adversely affected by foreign competition under the Trade Act of 1974, as amended. The effect of that certification was to make the claimant potentially eligible for benefits under the Trade Act, including Trade Adjustment Allowances (TAA) covering expenses of approved training and, after exhausting regular UI benefits, weekly Trade Readjustment Allowances (TRA payments).
In early January of 2004, the claimant started attending a full-time, nine-month specialized automotive repair course in collision repair and "street rod" fabrication at a technical school in Laramie, Wyoming. He attended class from 4:30 P.M. through 1:40 A.M., five nights a week, Monday through Friday.
The claimant applied to the department for approval of his training program under the Trade Act so that he could receive TAA benefits to pay for his school tuition and expenses. However, in January, 2004 the department issued a determination denying his request for approval of the training under the Trade Act.1(1)
Although the department denied approval of the claimant's training under the Trade Act and thus provided no financial assistance (in the form of TAA benefits) to cover the costs of the training, the claimant continued in the training, paying for it himself.
The claimant had also applied for unemployment insurance benefits. Generally, a UI benefit claimant's attendance at school on a full-time basis would raise a question as to whether the claimant was "available for work" as required by Wis. Stat. § 108.04(2). However, the department determined that the training the claimant was pursuing qualified as "approved training" under Wis. Stat. § 108.04(16), which meant that the department would not apply the "available for work" standard to disqualify the claimant because of his school attendance.
The claimant exhausted his entitlement to UI benefits in week 23 of 2004 (the week ending June 5), and at that time he sought to begin receiving weekly TRA payments. The department then issued the determination which is at issue in this case, concluding that the claimant was not eligible for weekly TRA payments because his school attendance restricted his availability for work to less than 50% of the full time jobs in his labor market, such that he was not "available for work" as required by Wis. Stat. § 108.04(2). The claimant appealed this determination, and the Appeal Tribunal affirmed. The claimant then filed a petition for commission review.
The issue for decision is whether the claimant was properly found, based on his school attendance, to be ineligible for TRA payments based on not being "available for work" as required by Wis. Stat. § 108.04(2).
Applicability of Wisconsin "able and available" standards to claimant --
A threshold question in this case is whether it was appropriate to subject the claimant to Wisconsin UI law "able and available" standards for purposes of determining his eligibility for TRA payments when he was not subjected to those standards for purposes of determining his eligibility to Wisconsin UI benefits. The answer to this question has to do with the differing provisions of the Wisconsin UI Act and the Trade Act and the interactions between those two laws.
Under the Trade Act, to be eligible for TRA, a claimant must satisfy state law able and available standards. 19 U.S.C. § 2294. Regulations promulgated by the Department of Labor under the Trade Act, at 20 C.F.R. § 617.17, confirm this requirement, and they also effectively provide that the requirement for compliance with state law availability standards can only be excused for persons who are unavailable for work due to school attendance if the program they are enrolled in is training approved under the Trade Act:
§ 617.17 Availability and active search for work.
(a) Extended Benefit work test applicable. Except as provided in paragraph (b) of this section, an individual shall, as a basic condition of entitlement to basic TRA for a week of unemployment-
. . .(2) be able to work and available for work, as defined in the applicable State law for UI claimants.
(b) Exceptions- . . .
(2) On and after November 21, 1988. The conditions stated in paragraphs (a)(2) and (a)(3) of this section shall not be applicable to an individual who is enrolled in or participating in a training program approved under § 617.22 (a), or during a break in the training program if (as determined for the purposes of § 617.15(d)) the individual participated in the training immediately before the beginning of the break and resumes participation in the training immediately after the break ends.
(emphasis added).
Different standards apply to determining whether training should be approved under the Wisconsin UI Act and the Trade Act. While the department decided that the claimant's training could qualify as "approved training" under Wis. Stat. § 108.04(16) for purposes of determining eligibility for UI benefits, the department had also decided in the training approval case that the claimant's training would not be approved under the Trade Act. Thus, the claimant did not come under the exception in 20 C.F.R. § 617.17(b)(2), and thus under 20 C.F.R. § 617.17(a)(2) he had to be "able to work and available for work, as defined in the applicable State law for UI claimants", and under 19 U.S.C. § 2294 "the availability . . . provisions of the state law under which . . . worker[s] are entitled to unemployment insurance" were applicable to him.
The fact that the claimant's training was state-law-approved, does not mean that he was "able to work and available for work, as defined in the applicable State law for UI claimants" within the meaning of 20 C.F.R. § 617.17(a)(2). The "approved training" provision of Wisconsin's UI Act is not a statutory declaration that someone whose training meets the approved training standards is "able and available". Rather, it is a statutory declaration that if a person is in training which meets the approved training standards, the able and available standards will not be applied to them. (2) However, the effect of the federal law and regulations cited above is that state law able and available standards must be applied to TRA claimants with respect to attendance in training that affects their eligibility for work, unless the training is approved under the Trade Act.
Therefore, it was appropriate to apply state law "able and available" standards to the claimant for purposes of determining his eligibility for TRA benefits notwithstanding that those standards had not been applied to him for purposes of determining his eligibility for Wisconsin UI benefits. The remaining question is, whether those standards were applied correctly.
Was the claimant able and available for work given his school attendance? --
A claimant is not eligible for benefits unless he is able to work and available for work. Wis. Stat. § 108.04(2). A claimant generally is required to be available for full-time work, which is defined in Wis. Admin. Code § DWD 100.02(28) as work performed for at least 35 hours per week. A totally unemployed claimant will not be considered able and available if he, without good cause, restricts himself to less then 50 percent of the full-time opportunities for suitable work in the labor market. Wis. Admin. Code § DWD 128.01(2). For these standards to be satisfied, a claimant will generally need to be available for work during the daytime, weekday hours when the majority of jobs are performed.
As noted above, the claimant attended class from 4:30 P.M. until 1:40 A.M., five nights a week, Monday through Friday.
The claimant contended that he was available for work despite his school attendance. He argued that given this schedule, which leaves his days open until school starts in the late afternoon, he was actually available for many jobs. He asserted that he was willing to work full-time on the first shift around his school hours.
Expert labor market evidence was provided by Angela Espinoza, an Employment and Training Specialist for the State of Wyoming. Espinoza had been in that position for 10 years and was familiar with the type of work available and the hours of work or the shifts that are customarily worked in Albany County, Wyoming (where Laramie, and the claimant, are located). She testified to her opinion that the claimant's school attendance would pose absolutely no restriction to the claimant's availability for full-time day work in the Laramie area. Espinoza explained that the University of Wyoming, Wyotech Institute and Laramie County Community College are all located in Laramie, that there are thus a large number of students in the area (15,000 students in the area out of a population 41,000), and that area employers are very flexible about adjusting to the scheduling needs of students.
Espinoza's testimony was persuasive. Given the large number of students in the local economy in the Laramie area, it is not surprising to find that the local labor market has basically adjusted itself to the scheduling needs of students to the extent that a person with a schedule requiring them to be finished each day by 4:00 P.M. might not have any trouble getting that schedule accommodated. Furthermore, Espinoza's testimony was not contradicted or called into question by any other competent evidence in the record. (3) For these reasons, the commission credits Espinoza's testimony.
The ALJ's decision does not indicate that he had any question as to the credibility and accuracy of Espinoza's testimony that the claimant's school attendance would not restrict his availability for full-time first-shift work. Rather, the ALJ concluded that the claimant was not able and available for work on a different basis: he indicated that he was "not convinced" that the claimant was willing or capable of maintaining the "grueling schedule" of working at least 35 hours per week during the day and while attending school each work night from 4:30 P.M. to 1:40 A.M.
This rationale seems to the commission to reflect no more than an exercise of the ALJ's intuition. Working days and going to school at night is a daunting schedule, which many people would find quite challenging, but it is also something which is clearly possible and which a number of people do. The circumstances of the claimant's pursuit of this training program reflect a significant degree of motivation on his part, which provides a basis for crediting his assertion that he would be willing to work during the normal workday hours. By contrast, there is nothing in particular in the record which can be pointed to as providing a basis for doubting the claimant's assertion to that effect.
In cases involving questions about a claimant's availability for work in light of school attendance, the commission has generally looked at the number and arrangement of hours during which the student-claimant is occupied by school to determine if there are enough open hours that the person could also work in a sufficient number of jobs to be considered able and available. See, e.g., Schmitz v. Holtzs Supper Club (LIRC, October 3, 2000). In cases in which the commission has decided that a claimant was not available for work because of school attendance, the rationale has generally been that the hours of school overlapped too much with the hours within which they would need to be available for full-time work to make it possible for them to do the latter. See, e.g., Kavalary v. Flexi Force Temporary Services (LIRC, October 28, 1999). It is a different matter to decide that a claimant who, given their schedule of class hours, could both work full-time days and go to school, in fact would not do so. That is a matter which touches on the subjective intent of the claimant and their actual willingness to work while also attending school. There might be cases in which it could be appropriately concluded that a claimant in fact probably would not pursue work at times when it was possible for them to do so given their class hours, but that would need a level of record support that is lacking here.
For all of the foregoing reasons, the commission finds that as of week 24 of 2004, the claimant was available for suitable work, within the meaning of section 108.04(2)(a) of the statutes and chapter DWD 128 of the Wisconsin Administrative Code.
The commission further finds that as of week 24 of 2004, the claimant met the availability for work requirements applicable to Wisconsin UI claimants as required by 20 CFR § 617.17, and therefore was eligible for basic TRA benefits under the Trade Act of 1974, as amended, if he is determined to be otherwise qualified.
The decision of the administrative law judge is reversed. Accordingly, the claimant is eligible for TRA benefits beginning in week 24 of 2004, if he is determined to be otherwise qualified.
Dated and mailed January 12, 2005
stammke3 . trr : 110 : 2 TRA
AA 205
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
NOTE: It should be emphasized that the decision in this case holds that the claimant is eligible for TRA benefits only if he is determined to be otherwise qualified. This will be determined in a separate companion case.
As is indicated above, the department determined that the claimant's training would not be approved as training under the Trade Act. This is relevant to the question of the claimant's eligibility for TRA payments, because under the Trade Act a claimant may not receive such payments unless they are in training approved under the Trade Act, have completed a course of such training, or have been granted a waiver of the training requirement. 19 U.S.C. § 2291(a)(5).
That determination not to approve the claimant's training under the Trade Act was separately appealed. The commission has this day issued a decision in that companion case, setting aside the department's determination that the training would not be approved, and remanding the matter to the department for it to issue a new determination on that question. Kerry A. Stamm (Hrg. No. 04000402JV).
The question of whether the claimant is "otherwise qualified" as contemplated by the decision in this matter, will thus depend on the outcome of the remand proceedings in that matter, and must therefore necessarily wait on that determination. If a determination is reached on remand in the training approval matter that the claimant's training can not be approved as training under the Trade Act, the claimant may not be "otherwise qualified" because of the requirements of 19 U.S.C. § 2291(a)(5) referred to above, that a claimant either be in training approved under the Trade Act, have completed such training, or have been granted a waiver of the training requirement. If a determination is reached on remand in the companion case that the claimant's training is approved training under the Trade Act, he will have satisfied the "in training" element of that requirement -- but the commission would also note that in that case, the issue presented in the instant case will be effectively mooted, because the claimant will also come within the terms of the exception contained in 19 C.F.R. § 617.17(b)(2) for claimants in training approved under the Trade Act.
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With his petition for review, claimant's representative requested an opportunity for oral argument and for briefing. In view of the commission's analysis of the issues presented and its decision as reflected above, it considered that this was unnecessary, and the request has for this reason not been granted.
cc:
Brian Gohlke
Advance Transformer Company, Monroe, WI 53566-2739
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