Equitable tolling for TAA benefit deadlines

Accessible letter PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2011/TEGL08-11acc.PDF

CLASSIFICATION
   EMPLOYMENT AND TRAINING ADMINISTRATION                  TAA
               ADVISORY SYSTEM                             CORRESPONDENCE SYMBOL
                                                           OTAA
          U.S. DEPARTMENT OF LABOR
                                                           DATE
             Washington, D.C. 20210                        October 19, 2011


ADVISORY:           TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 8-11

TO:                 STATE WORKFORCE AGENCIES
                    STATE WORKFORCE LIAISONS
                    ONE-STOP CENTER SYSTEM LEADS
                    STATE WORKFORCE ADMINISTRATORS
                    STATE AND LOCAL WORKFORCE BOARD CHAIRS AND
                    DIRECTORS
                    STATE LABOR COMMISSIONERS

FROM:              JANE OATES /s/
                   Assistant Secretary

SUBJECT:           Availability of Equitable Tolling of Deadlines for Workers Covered Under
                   Trade Adjustment Assistance (TAA) Certifications

1. Purpose. This Training and Employment Guidance Letter (TEGL) informs states of the
   Department of Labor’s (Department) interpretation of the Trade Act, applicable to workers
   without regard to whether they were covered by certifications issued under the 2002
   Amendments or the 2009 Amendments or any future law governing the TAA program,
   allowing equitable tolling of the statutory and regulatory TAA deadlines for: 1) enrolling in
   training as a condition of eligibility for Trade Readjustment Allowances (TRA) under section
   231(a)(5)(A) of the Trade Act; 2) making a bona fide application to a training program as a
   condition of eligibility for Additional TRA under section 233(b); and 3) applying for job
   search allowances under section 237(a)(2)(C) and relocation allowances under section
   238(a)(2)(E) and (c) of the Trade Act. In this context, this TEGL emphasizes to State
   Workforce Agencies or agencies designated by Governors as “Cooperative State Agencies”
   (CSAs) (also jointly referred to as “states”) the critical importance of their responsibility to
   notify adversely affected workers that they are covered under a TAA certification and to
   supply them with TAA benefit information that explains these deadlines.

2. References. Chapter 2 of Title II of the Trade Act of 1974, as amended (Pub. L. No. 93-618,
   as amended) (Trade Act); Trade and Globalization Adjustment Assistance Act of 2009,
   Division B, Title I, Subtitle I of the American Recovery and Reinvestment Act of 2009, (Pub.
   L. No. 111-5) (2009 Amendments); Trade Adjustment Assistance Reform Act of 2002,
   Division A, Title I, Subtitle A of the Trade Act of 2002 (Pub. L. No. 107-210) (2002
   Amendments); 20 CFR Part 617; TEGL No. 22-08, Operating Instructions for Implementing
   the Amendments to the Trade Act of 1974 Enacted by the Trade and Globalization
   Adjustment Assistance Act of 2009; TEGL No. 11-02, Operating Instructions for
 RESCISSIONS                                               EXPIRATION DATE
 None                                                      Continuing


   Implementing the Amendments to the Trade Act of 1974 Enacted by the Trade Act of 2002,
   and its Change 1.

3. Background. Section 617.4 of 20 CFR requires states to provide TAA benefit information
   and assistance to workers, as provided under their agreements with the Secretary of Labor to
   implement the TAA program. As provided in this regulation, states must provide:

           A. Full information to workers about the benefit allowances, training, and other
              TAA employment services, the petition and application procedures, and the
              appropriate filing deadlines, for trade adjustment assistance allowances, training
              and services; and
           B. Whatever assistance is necessary to enable groups of workers, including
              unorganized workers, to prepare applications for program benefits.

   States must provide this notice and assistance to all workers in a group covered under any
   TAA certifications, without regard to whether the certification is under the 2002 or 2009
   Amendments or under any future law governing the TAA program. TEGL No. 11-02 and
   TEGL No. 22-08 also provide that states, as agents of the Secretary, must notify certified
   workers of potential Trade Act benefits and services, make eligibility determinations for
   individuals, and deliver TAA benefits and services.

   Section 617.50(d) of 20 CFR explains that state law provisions and regulations on good
   cause for waiver of time limits, or for late filing of any claim, do not apply to TAA claims,
   except as provided by 20 CFR Part 617. This regulation applies to workers seeking TRA or
   TAA training under certifications issued under the 2002 Amendments, and also to workers
   seeking job search and relocation allowances without regard to whether they were covered
   under certifications issued under the 2002 or the 2009 Amendments or under any future law
   governing the TAA program. Under section 234(b) of the Trade Act as amended by the 2009
   Amendments, state laws and regulations on good cause for waiver of time limits or late filing
   of claims apply to workers covered under certifications issued under the 2009 Amendments
   with respect to an application for TRA or enrollment in training.

   TEGL No. 11-02, Change 1 describes the deadline for enrollment in training as a condition
   of TRA under section 231(a)(5)(A) of the Trade Act of 1974 (the “8/16 deadline”) under the
   2002 Amendments, as follows:

              “…either the last day of the 8th week after the week of issuance of the
              certification of eligibility covering the worker or the last day of the 16th week
              after the worker’s most recent total qualifying separation, whichever is later
              (commonly referred to as the 8/16 week deadline).”

   TEGL No. 11-02, Change 1 further explains that:

              The “8/16 week deadline” for a worker will be reached while the worker is still
              receiving unemployment insurance (UI). Some workers are not aware that this
              deadline may apply before they exhaust their UI. The state is responsible for
              informing workers of these requirements. The state must also assist such workers
              in enrolling in an approved training program prior to the 8/16 week deadline, or

              issue the workers waivers [under section 231(c)] prior to the 8/16 week deadline,
              if appropriate.

   Also, the regulation 20 CFR 617.15(b)(2), provides that:

              Additional TRA requires that the individual make a bona fide application for
              TAA training within 210 days from either the date of the certification or the most
              recent TAA separation.

   This regulation applies only to workers seeking TAA training under certifications issued
   under the 2002 Amendments, because this 210-day deadline was repealed by the 2009
   Amendments.

   Also, the Trade Act contains additional filing deadlines for applying for job search
   allowances (section 233(b) and relocation allowances (section 237(a)(2)(C)), that are
   codified in the Department’s longstanding regulations at 20 CFR 617.31(c), and 20 CFR
   617.41(c), respectively. These regulations apply to all workers in a group covered under any
   TAA certifications, without regard to whether the certification is under the 2002 or 2009
   Amendments or under any future law governing the TAA program.

4. Availability of Equitable Tolling.

          A. What Is Equitable Tolling? Equitable tolling is a doctrine that permits the
             suspension of statutory and administrative deadlines where equity demands; it is
             not a statutory provision requiring a waiver of deadlines for “good cause”. Unlike
             many statutory provisions allowing for “good cause” waiver of time limits, or for
             late filing of any claim, equitable tolling of a deadline may only apply in
             egregious circumstances where an individual acted with due diligence to meet
             that deadline. Federal courts have found that this well-established doctrine may
             provide relief with respect to TAA time limits, although no federal court has
             applied this doctrine to the time limits addressed by this TEGL. For additional
             information see Former Employees of Sonoco Products Co. v. Chao, 372 F.2d
             1291, 1297-98 (Fed. Cir. 2004); Former Employees of Fisher & Company, Inc. v.
             U.S. Department of Labor, 507 F. Supp. 2d 1321, 1328) (CIT 2007); Lady Kelly,
             Inc. v. U.S. Secretary of Agriculture, 427 F. Supp. 1171, 1174-75 (CIT 2006).
             However, in these TAA decisions, and generally, courts rarely find that equitable
             tolling is appropriate.
          B. When Should Equitable Tolling Apply? The Department has determined that
             equitable tolling will be applied in situations where it would be manifestly unfair
             to deny a worker TRA eligibility based on the worker’s failure to meet the
             statutory deadline for enrolling in training, or to deny other TAA benefits such as
             Additional TRA, job search allowances or relocation allowances, based on a
             missed deadline. To apply equitable tolling in a particular situation, the state
             must determine that, whether or not the Department or the state was at fault, the
             worker exercised due diligence in meeting these TAA benefit eligibility
             deadlines.
              For example, equitable tolling may apply where a worker was not informed of the
              8/16 deadline while receiving unemployment insurance and before the 8/16

   deadline expired. Another situation where equitable tolling may be appropriate is
   where the state did provide notice of TAA benefits and deadlines and where a
   worker did everything necessary to enroll in training by the 8/16 deadline, but
   was unable to do so because the state did not approve the training in time.
C. What Happens When A Deadline Is Equitably Tolled? When a deadline is
   equitably tolled, the deadline to enroll in training, apply for Additional TRA, job
   search allowances and relocation allowances is affected as follows:
        i. Training: In the limited situations where a state finds that equitable tolling
           of the 8/16 deadline is appropriate where the worker did not receive timely
           notice, which meets the requirements of 20 CFR 617.4, and the worker
           acted diligently to obtain TAA benefits when notice was eventually
           provided, the deadline for enrollment in training will begin on the date the
           worker knew or should have known of the 8/16 deadline and will end on
           the last day of the 8th week (or the 56th day) following that date.
       ii. Additional TRA: Likewise, the same action must be applied if the worker
           did not receive timely notice, which meets the requirements of 20 CFR
           617.4, that eligibility for Additional TRA requires a bona fide application
           for TAA training as provided at 617.15(b)(2). Accordingly, the 210-day
           period must be afforded to the individual from the date the worker knew
           or should have known about the 210-day deadline.
      iii. Job Search Allowances: The same action also must be applied in
           situations covering job search allowances. The time limits would be tolled
           if it is established that the worker did not receive timely notice, which
           meets the requirements of 20 CFR 617.4, that under 617.31(c), an
           application for job search allowances must be submitted before the 365th
           day after the certification, or the individual’s last total separation, or as
           applicable, the 182nd day after the completion of TAA training. If the
           individual did not receive timely notice, which meets the requirements of
           20 CFR 617.4, about the job search allowances, and if the individual did
           not complete TAA training, the 365-day period will begin when the
           individual knew or should have known about the deadline. If the
           individual completed TAA training, the 182-day period will begin when
           the individual knew or should have known about the deadline.
      iv. Relocation Allowances: Similarly, the same action must be applied in
          situations covering relocation allowances. The time limits would be tolled
          if it is established that the worker did not receive timely notice, which
          meets the requirements of 20 CFR 617.4, that under 617.41(c), an
          application for relocation allowances must be submitted before the 425th
          day after the certification, or the individual’s last total separation, or as
          applicable, the 182nd day after the completion of TAA training. If the
          individual did not receive timely notice, which meets the requirements of
          20 CFR 617.4, about the relocation allowances, and if the individual did
          not complete TAA training, the 425-day period will begin when the
          individual knew or should have known of the deadline. If the individual
          completed TAA training, the 182-day period will begin when the
          individual knew or should have known about the deadline.
5. Instructions.

          A. Application of Equitable Tolling to Pending and Future Claims. In order to apply
             this interpretation concerning equitable tolling effective as soon as possible after
             issuance of this TEGL, to all workers in a group covered under any TAA
             certification, whether the certification is under the 2002 or 2009 Amendments or
             any future law governing the TAA program, states are required to:

                   1. Inform all appropriate staff, including the appellate divisions of the state
                      agency, of the availability of equitable tolling to eligibility deadlines for
                      TAA benefits applicable to TAA claims or applications made by workers,
                      as described in this TEGL; and

                   2. Take appropriate action to apply equitable tolling in all determinations,
                      redeterminations, and appeals on TAA deadlines issued on or after the
                      date of this TEGL in accordance with 20 CFR 617.50(c) and 20 CFR
                      617.51.

          B. Waiver of training requirement as a condition of TRA. As established by TEGL
             No. 11-02, Change 1, waivers may only be issued before the expiration of the
             applicable deadline for enrollment in training, not after it has expired. This
             TEGL provides, however, that the deadlines may be extended for equitable
             reasons. Accordingly, where the enrollment deadline has been extended, for
             example, from April 1 to May 3, the worker, to qualify for TRA, must either be
             enrolled in training by that date or have a waiver of the training requirement. A
             state may not issue a waiver after May 3.

          C. Extenuating Circumstances. The exception to the 8/16 deadline for “extenuating
             circumstances” under section 231(a)(5)(A)(ii)(III) of the Trade Act, as explained
             in TEGL No. 11-02, continues to apply. The availability of equitable tolling does
             not preclude states from finding that extenuating circumstances justify a 45-day
             extension of the enrollment period. States will apply the 45-day extension of the
             enrollment period when appropriate to provide workers a longer period of time to
             be eligible for TRA, enroll in training or obtain a waiver, as a first option – before
             resorting to the application of equitable tolling.

    6. Inquiries. Please direct all inquiries to the appropriate Regional Office.

    7. Attachment.

                  Attachment 1: Availability of Equitable Tolling of Deadlines for Workers
                   Covered Under Trade Adjustment Assistance Certifications TEGL -
                   Questions and Answers




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Attachment: Equitable Tolling Questions and Answers

Official attachment PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2011/TEGL08-11a1.PDF

Attachment 1


     Availability of Equitable Tolling of Deadlines for Workers Covered Under
                 Trade Adjustment Assistance (TAA) Certifications

                                   Questions and Answers

1. What is this TEGL about?

   This TEGL reminds states of the critical importance of their responsibility to notify
   adversely affected workers that they are covered under a TAA certification and to
   provide them with TAA benefit information that explains TAA deadlines.

   It also announces that the Department of Labor (Department) recognizes that TAA
   benefit deadlines may be equitably tolled for workers after those deadlines have passed.

2. What is equitable tolling?

   Equitable tolling is a legal principle evolved from the common law of equity. The
   principle of equitable tolling provides that the statute of limitations will not bar a claim
   if the individual, despite reasonable care and diligent efforts, did not discover the injury
   until after the limitations period had expired. Courts have the authority to provide
   “equitable” remedies in situations where it would be unjust or unfair not to provide
   relief to a party as appropriate. If the court applies the doctrine, the failure to meet the
   deadline is excused and the individual will be allowed to proceed as if the time to meet
   the deadline had not expired.

   Generally, when the time to meet a deadline is “tolled”, it means that the time to meet
   the deadline has been stopped. Tolling the time to meet a deadline provides additional
   time to meet that deadline.

3. Why is the Department issuing this policy now?

   The Trade and Globalization Adjustment Assistance Act of 2009 (TGAAA) provided
   relief to workers who failed to meet deadlines for applying for Trade Readjustment
   Allowances (TRA) for “good cause” as provided in state laws and regulations for
   waiver of time limits or late filing of claims. These provisions expired in February
   2011, and workers again were without statutory relief from strict TRA deadlines.
   Thereafter, the Illinois State Supreme Court, issued an opinion in Williams v. Board of
   Review, 2011 Westlaw 1049884 (Ill. March 24, 2011), applying the doctrine of
   “equitable tolling” to toll the strict deadline for enrolling in training (that was in effect
   before the TGAAA) because the worker, Ms. Williams, had not been notified by the
   State of her certification or advised of TAA training and benefit enrollment deadlines as
   required under 20 CFR Part 617.

   In view of this decision and Federal court decisions applying this well-established
   doctrine in cases involving different Trade Act provisions, the Department now
   recognizes that equitable tolling may be available in situations where it would be
   manifestly unfair to deny a worker TAA benefits based on a missed deadline.


Attachment 1


4. Does this TEGL apply to past determinations, or only to future decisions?

   States are being instructed to take appropriate action to apply equitable tolling in all
   determinations, redeterminations, and appeals on TAA deadlines issued on or after the
   date of this TEGL in accordance with 20 CFR 617.50(c) and 20 CFR 617.51.

   In particular, states are being asked to inform all appropriate staff, including the
   appellate divisions of the state agency, of the availability of equitable tolling to
   eligibility deadlines for TAA benefits applicable to TAA claims or applications made
   by workers, as described in this TEGL.

5. What specific deadlines are addressed in this TEGL?

   This TEGL describes how equitable tolling applies to TAA benefit deadlines; and
   specifically identifies:

      a) Deadline to enroll in training (Section 231(a)(5)(A) of the Trade Act)
      b) Deadline to apply for Additional TRA (20 CFR 617.15(b)(2))
      c) Deadline to apply for Job Search Allowances (20 CFR 617.31(c))
      d) Deadline to apply for Job Relocation Allowances (20 CFR 617.41(c))

  However, this list is not exclusive, and other TAA benefit deadlines may be equitably
  tolled in appropriate cases.




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