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

MARY A ROBINSON, Claimant

TRADE ACT DECISION
Hearing No. 04004427MD


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Background -- The claimant worked for Bestt Liebco Corporation. On March 8, 2004, Bestt Liebco was certified under the Trade Act as adversely affected by foreign competition (Petition TA-W-54158), with an impact date of February 3, 2003. The claimant last worked for Bestt Liebco on March 5, 2004, after which she was laid off for lack of work. Her separation was within the impact period specified for this certification, and she was thus potentially eligible for benefits under the Trade Act.

The Trade Act has long provided that one of the requirements for eligibility for weekly Trade Readjustment Allowance (TRA) payments, is that claimants must either be enrolled in approved training, have completed such training, or have been granted a waiver of the training requirement. See, 19 U.S.C § 2291(a)(5). Amendments to the Trade Act made by the Trade Adjustment Assistance Reform Act of 2002 added a requirement under the "enrolled in" option of this provision, stating that the enrollment in training which that option concerned had to occur by the latest of either the 16th week after the claimant's separation, the 8th week after the certification of the employer, or certain other defined dates. For convenience, this will be referred to herein as the "16/8-week deadline". This case presents issues as to whether the 16/8-week deadline was appropriately applied to disqualify this claimant from eligibility for TRA benefits.

After her separation from employment in 2004, the claimant applied for and began receiving unemployment insurance benefits. The claimant did not apply for benefits under the Trade Act at that time because she was unaware of any need to do so. However, at some point subsequent to her separation and prior to April 23, 2004, the claimant was sent information by the department advising her that she could apply for benefits under the Trade Act and that there were deadlines for such filing which could affect her benefit eligibility if not met. This information stated that a meeting concerning this would be held on April 23, 2004. The claimant was sent another letter from the department on May 6, 2004, which contained forms for her to use in applying for benefits under the Trade Act, and which also mentioned deadlines which could affect her benefit eligibility. The claimant did not take any action in response to these mailings. She asserted that she was having a lot of problems at home so that when she got mail that was very important it disappeared on her.

Given the date of certification of the claimant's employer and the date of her qualifying separation from employment, the claimant was subject to the 16-week element of the 16/8-week deadline. That deadline ran out on July 3, 2004. The claimant had not sought to apply for benefits under the Trade Act by that time.

Sometime prior to or in early August, 2004, the claimant was asked by a friend of hers if she had enrolled in the TRA program yet. This led the claimant to contact the department. The claimant saw a department representative on August 5, 2004. At that time, she completed an "Application For Training And Additional Allowances While In Training" form (Form No. 858-1). That form has a section on which a department representative may indicate whether the request for training is approved or denied, or if a waiver of the training requirement is granted and the reasons therefor. A representative of the department completed that portion of that form, by indicating that a waiver was granted, checking as a reason therefor the "delay in first available enrollment date for training" box.

However, on August 25, 2004, the department issued a determination concluding that the claimant was not eligible for TRA benefits or the Health Coverage Tax Credit (1) under the Trade Act, based on the 16/8-week deadline. The determination specifically relied on the grounds that:

The claimant failed to enroll in full-time approved training or to receive a training waiver within the 16th week of her most recent "qualifying" separation or the last day of the 8th week after the certification date.

(emphasis added). The determination thus reflected an interpretation of the 16/8-week deadline which applied it not only to enrollment in training, but also to the matter of a claimant being granted a waiver of the training requirement. (2)

The claimant appealed the department's determination. Following a hearing, an ALJ acting as an Appeal Tribunal for the department issued a decision on November 18, 2004, affirming that determination.

The ALJ evidently agreed with the department's interpretation that the 16/8-week deadline applied to waivers of the training requirement and thus with the conclusion that the claimant was disqualified from eligibility for TRA benefits. With respect to the claimant's argument that her failure to meet the deadline was due to difficulty in keeping track of her mail, the ALJ concluded that this did not provide a basis for ignoring the deadline.

The claimant filed a petition for commission review. In her petition, the claimant renewed her argument that she did not receive the mailed information about the TRA benefit deadline because she was not receiving her mail, and she also asserted that she had been under the impression that she could not enroll in the TRA benefit program until her regular UI benefits were close to being exhausted.

The issue for decision presented by the claimant's petition in this case is whether the ALJ correctly concluded that the claimant was ineligible for TRA benefits because she failed to enroll in full-time approved training or to receive a training waiver within the 16/8-week deadline.

The claimant's petition focuses on her claim that she did not know of her need to claim benefits under the Trade Act within the 16/8-week deadline. However, there is another issue which, although not raised by the claimant's petition, is nevertheless clearly presented by this case. This issue is whether under the language of the Trade Act the claimant was properly considered to be ineligible for TRA benefits as a result of application of the 16/8-week deadline -- specifically, whether the 16/8-week deadline was appropriately applied to training waivers (as opposed to enrollment in training). The commission first addresses this issue. 
 

Interpretation and Application of the 16/8-week deadline -- The language of the Trade Act relevant to this issue, in 19 U.S.C § 2291(a)(5), states a worker can be eligible for TRA payments if the worker:

(A)    (i) is enrolled in a training program approved by the Secretary under section 236(a) [19 U.S.C § 2296(a)], and

(ii) the enrollment required under clause (i) occurs no later than the latest of--

(I) the last day of the 16th week after the worker's most recent total separation from adversely affected employment which meets the requirements of paragraphs (1) and (2),
(II) the last day of the 8th week after the week in which the Secretary issues a certification covering the worker,
(III) 45 days after the later of the dates specified in subclause (I) or (II), if the Secretary determines there are extenuating circumstances that justify an extension in the enrollment period, or
(IV) the last day of a period determined by the Secretary to be approved for enrollment after the termination of a waiver issued pursuant to subsection (c),

(B) has, after the date on which the worker became totally separated, or partially separated, from the adversely affected employment, completed a training program approved by the Secretary under section 236(a) [19 U.S.C § 2296(a)], or

(C) has received a written statement under subsection (c)(1) after the date described in subparagraph (B).

The "written statement under subsection (c)(1)" referred to in subparagraph (C) is a waiver of the training requirement granted under 19 U.S.C § 2291(c), "Waivers of training requirements". The standards governing the question of whether a claimant can be granted a training waiver are stated in that section.

The claimant here did not meet the first condition, stated in subparagraph (A) of 19 U.S.C § 2291(a)(5), of having been enrolled in training within the 16-week timeline, or the second condition, in subparagraph (B), of having actually completed an approved training program. However, the three conditions in 19 U.S.C § 2291(a)(5)(A), (B) and (C) are joined by a disjunctive (the "or" at the close of subparagraph (B)). Thus, if any one of the three conditions is satisfied, the provision as a whole is satisfied. This should mean, that a claimant could potentially be eligible for TRA payments under this provision where granting a training waiver is appropriate under the standards for such a waiver stated in 19 U.S.C § 2291(c).

The department evidently interpreted this provision to somehow apply the 16/8-week deadline on enrollment in training found in subparagraph (A), to the matter of waivers of the training requirement found in subparagraph (C). After careful consideration of this issue, in a number of other cases involving the same interpretation by the department, the commission concluded that the department was in error. (3)  The commission continues to hold that view. For the reasons describe more fully in those other decisions, the commission is persuaded that the 16/8-week deadline provisions in 19 U.S.C § 2291(a)(5)(A) do not apply to the option created by 19 U.S.C § 2291(a)(5)(C) under which a claimant may be found to have satisfied the requirements of 19 U.S.C § 2291(a)(5) based on a training waiver. Under 19 U.S.C § 2291(a)(5), a waiver of the training requirement may be granted after the 16/8-week deadline has run, and if it is granted, the claimant to whom it is granted will at that point have satisfied the eligibility condition of that section and will be eligible for TRA benefits.

[While it is not material to the outcome here, the commission would also note that the department appears to have erred in concluding that the 45-day extension in 19 U.S.C § 2291(a)(5)(A)(ii)(III), was potentially applicable here. That provision sets out an alternative deadline date, of 45 days after the 16- or 8-week deadline dates, "if the Secretary determines there are extenuating circumstances that justify an extension in the enrollment period". As stated, though, this authority is granted specifically to "the Secretary", the reference being to the U.S. Secretary of Labor. While there are circumstances under the Trade Act in which authority vested in the Secretary of Labor may be delegated to states, this does not appear to be one of them. The Secretary's authority to delegate powers to states is described in 19 U.S.C. § 2311(a). It clearly and specifically covers the Secretary's authority to grant waivers of the training under 19 U.S.C. § 2291(c); it just as clearly does not cover the Secretary's authority to decide that there are "extenuating circumstances" under 19 U.S.C. § 2291(a)(5)(A)(ii)(III). A waiver of the training requirement under 19 U.S.C. § 2291(c), and a 45-day extension of the deadline to be enrolled in training under 19 U.S.C. § 2291(a)(5)(A)(ii)(III), both have to do with training under the Trade Act, but they are different matters. In addition to the absence of any indication in the Trade Act that states may exercise the Secretary's authority to grant 45-day extensions of the 16/8-week deadline dates based on "extenuating circumstances", the Department of Labor has not promulgated any regulations so providing. For these reasons, the commission believes that the department does not have the authority to grant 45-day extensions of the 16/8-week deadline based on "extenuating circumstances".]

Because of its erroneous interpretation according to which it concluded that it was too late for a training waiver to be granted, the department failed to make the necessary determination as to whether the claimant could be granted a training waiver under the standards stated in 19 U.S.C § 2291(c). For these reasons, the commission concludes that the Appeal Tribunal Decision, and the underlying determination, must be set aside, and this matter remanded to the department for further action. The specific further action which the department will be directed to take is described below in the Conclusion section of this decision. 
 

Claimant's asserted lack of knowledge of the deadline -- As noted above, the ALJ evidently accepted the interpretation of the department that the 16/8-week deadline disqualified the claimant both with respect to the matter of enrollment in training and waiver of training. He also concluded that the claimant's failure to meet the 16/8-week deadline could not be overlooked or excused based on her assertions about not having been aware of the deadline.

While the commission has concluded that the 16/8-week deadline does not apply to the matter of granting waivers of the training requirement, this does not completely moot the question implicated by the claimant's petition, of whether there is any equitable or other basis to disregard the 16/8-week deadline or waive its application based on the claimant's asserted lack of knowledge about it. This matter is going to be remanded for the department to make a determination on whether the claimant can be found to be entitled to a waiver of the training requirement under the standards described in the Trade Act. If on remand a determination is made that the claimant cannot be found to be entitled to a waiver of the training requirement under those standards, and if she cannot be found eligible on the alternative grounds of having completed an approved training program, it could still be argued that she might have timely enrolled in a training program if she had known about the 16/8-week deadline. For this reason, the commission considers it advisable to address that issue.

The Trade Act and applicable regulations place a number of specific requirements on state agencies such as the department, to provide timely information to claimants about procedures and timelines for applying for benefits under the Trade Act. (4)   The facts of this case are very different from those in a number of other cases recently decided by the commission, in which it was evident that the department had failed to comply with those responsibilities. (5)   Here, the department timely and repeatedly provided specific information directly to the claimant via mail, informing her of her potential eligibility for benefits and of the existence of deadlines and the consequent need for her to promptly apply for those benefits. Any lack of awareness on the claimant's part that she could apply for benefits under the Trade Act and faced deadlines concerning such an application, was not the fault of the department.

As the commission has concluded in other decisions, see, e.g., Christine L. Tracy (Hrg. No. 04604111MW)(LIRC, Jan. 27, 2005), the 16/8-week deadline in 19 U.S.C § 2291(a)(5)(A) could not be overlooked or waived even if the department's failure to provide information had been the cause of a claimant missing that deadline. It is all the more so clear here, where the department's obligations were fully complied with, that the applicability of that deadline to the claimant here in the respect to which it is appropriate (i.e., to the question of enrollment in training), cannot be overlooked or waived.  
 

Conclusion -- The 16/8-week deadline in 19 U.S.C § 2291(a)(5)(A) does not apply to the option created by 19 U.S.C § 2291(a)(5)(C) under which a claimant may be found to have satisfied the requirements of 19 U.S.C § 2291(a)(5) based on the issuance of a training waiver. A claimant is potentially eligible for TRA payments under 19 U.S.C § 2291(a)(5) based on a determination granting a waiver of the training requirement, even if that waiver is granted after the 16/8-week deadline has run. The commission therefore finds, that the fact that there was no determination granting claimant a waiver of the training requirement within the 16/8-week deadline does not require the conclusion that she was disqualified from eligibility for TRA benefits.

Because of its erroneous interpretation that the 16/8-week deadline prevented the granting of a training waiver after that deadline had run, the department never issued a determination addressing the question of whether the claimant was entitled to a waiver of the training requirement under 19 U.S.C. § 2291(c). It is therefore necessary remand the matter to the department for it to issue such a determination.

If the claimant is determined to be entitled to a waiver of the training requirement under the applicable standards in 19 U.S.C. § 2291(c), this will meet the requirements of 19 U.S.C § 2291(a)(5) by satisfying the condition stated in subparagraph (C) of that provision, and the claimant will be eligible for TRA benefits as of that point, subject to being otherwise qualified.

The record indicates that the claimant began attending school in August, 2003. It is not clear if she was doing so as part of a program of training approved under the Trade Act. If she was, and if she has completed or eventually completes such a course of training, this will meet the requirements of 19 U.S.C § 2291(a)(5) by satisfying the condition stated in subparagraph (B) of that provision, and the claimant will be eligible for TRA benefits as of the point at which she completes such training, subject to being otherwise qualified. See, NOTE, infra at p. 9.

The 16/8-week deadline may not be waived or disregarded based on equitable or any other theories. Thus, if the claimant is determined not to be entitled to a waiver of the training requirement, and unless or until she is determined to have completed a course of training approved under the Trade Act, then the claimant's failure to have enrolled in training within the 16/8-week deadline will make her ineligible for TRA benefits, notwithstanding any lack of awareness on her part as to the procedures and timelines under the Trade Act.

Based on the foregoing, the commission now makes the following:

ORDER

The November 18, 2004 decision of the ALJ in this matter is set aside. The August 25, 2004 department determination in this matter is set aside.

This matter is remanded to the department for an investigation of and the issuance of a determination on the issue of whether the claimant is entitled to a waiver of the training requirement under the standards described in 19 U.S.C § 2291(c), "Waivers of training requirements", and relevant regulations thereunder. The 16/8-week deadline described in 19 U.S.C § 2291(a)(5)(A) is not applicable to and should not be considered in the making of this determination. If the claimant is determined to be entitled to a waiver of the training requirement under the standards described in 19 U.S.C § 2291(c), then the claimant will be eligible, as of the date of that determination, for Trade Readjustment Allowances under Petition TA-W-54158 applying to Bestt Liebco Corporation, if she is otherwise qualified.

Dated and mailed February 9, 2005
robinma . trr : 110 : TRA

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: For the reasons discussed in the Tracy decision (see footnote 3 above) and other recent cases presenting this same issue, the commission has concluded that in a situation such as this, in which the department has never issued a formal determination reflecting its decision on whether a claimant is entitled under the standards of 20 U.S.C. § 2291(c) to a waiver of the training requirement, it would not be appropriate to order it to do so retroactively. The department is therefore being directed to determine only whether under those standards the claimant herein could at this time be granted a training waiver, and, if so, to determine that claimant to be eligible for TRA payments at this time, if otherwise qualified.

The fact that the claimant began attending school raises the possibility that the claimant has completed, or may in the future complete, a course of training approved under the Trade Act, thus satisfying the condition in 19 U.S.C § 2291(a)(5)(B) ("has, after the date on which the worker became totally separated, or partially separated, from the adversely affected employment, completed a training program approved by the Secretary"). As discussed above in this decision, the requirement of 19 U.S.C § 2291(a)(5) is satisfied if the conditions in either subparagraph (A), (B) or (C) are met, and the 16/8-week deadline is attached only to the condition in subparagraph (A). Based on the analysis set forth above, therefore, the "completed training" condition of 19 U.S.C § 2291(a)(5)(B) would no more be subject to the 16/8-week deadline, than the "training waiver" condition of 19 U.S.C § 2291(a)(5)(C). Thus, a claimant who has completed a course of approved training should at that point be eligible for TRA payments, if otherwise qualified, on that basis, without regard to enrollment date. The department should thus look at and determine that "completed training" issue if and when it becomes relevant.

---o0o---


The commission has not consulted with the ALJ concerning credibility of witnesses. The commission's decision to set aside the decision of the ALJ was not based on any differing assessment of credibility, but was instead based on a different view of the proper interpretation of the applicable law.


Appealed to Circuit Court.  Reversed,  January 4, 2006.  Appealed to the Court of Appeals.   Circuit Court decision affirmed October 26, 2006, sub nom. DWD v. LIRC and Mary Robinson et al., 2006 WI App 241, 297 Wis. 2d 546, 725 N.W.2d 304 .

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Footnotes:

(1)( Back ) The impact on HCTC eligibility was simply a result of the determination that the claimant was not entitled to TRA benefits; there are no separate HCTC eligibility issues.

(2)( Back ) The department had also issued a separate determination, on August 16, 2004, that there could be no 45-day extension of the applicable 16/8-week deadline based on "exceptional circumstances". This was evidently a reference to the provisions of 19 U.S.C 2291(a)(5)(A)(ii)(III), which provides an alternative deadline date of 45 days after the 16- or 8-week deadline dates "if the Secretary determines there are extenuating circumstances that justify an extension in the enrollment period". The 45th day after the end of the 16-week deadline applicable to the claimant (July 3), was August 17. As is discussed below, infra at p. 5, the commission has concluded that it would not have been within the authority of the department to grant a 45-day extension. However, this does not affect the outcome of this case.

(3)( Back ) See, e.g., Kathleen A. Siebold (Hrg. Nos. 04401946AP, 04401947AP)(LIRC, Jan. 27, 2005), Christine L. Tracy (Hrg. No. 04604111MW)(LIRC, Jan. 27, 2005).

(4)( Back ) 19 U.S.C 2311(f), "Advising and interviewing adversely affected workers", requires each cooperating State agency to advise each worker who applies for unemployment insurance of the benefits available under the Trade Act and the procedures and deadlines for applying for such benefits. The Department of Labor's regulations provide, at 20 C.F.R. 617.4, "Benefit information to workers", that state agencies shall provide full information to workers, by means including individual mailed notices, about the benefit allowances, training, and other employment services available under the Act and about the petition and application procedures, and the appropriate filing dates, for such allowances, training and services. 20 C.F.R. 617.10(d), "Advising workers to apply for training", requires state agencies to 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 benefits.

(5)( Back ) See, e.g., Joe N. Hartlich (Hrg. No. 04403365AP)(LIRC, Jan. 27, 2005), Sherry J. Wilson (Hrg. No. 04403129AP)(LIRC, Jan. 27, 2005).

 


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