However, in determining EB and FSC eligibility requirements and benefits, the State
did not adhere to this "specific week" UC base period calculation, but rather
expanded it to include holiday pay, vacation pay and sick pay, and "tips and the reasonable
value (actual or estimated average) of board, rent, housing, . . . and any other similar advantage
received from the individual's employing unit. . . ." not allocated to any specific work
week. Wisconsin Unemployment Compensation Law § 108.02(6); A.F. at 112.
Pursuant to federal EUCA § 202(a)(2), the terms and conditions
of the State law which apply to claims for regular UC "shall apply to claims for [EB]. . .
." 26 U.S.C. § 3304 note. And Section 602(d)(2) of FSCA requires that the terms
and conditions of the State law which apply to EB "shall apply" to FSC. 26 U.S.C.
§ 3304 note. Contrary to these prescriptions, the State did not use the more restrictive
"specific week" basis it applies in determining UC eligibility and benefit levels when
it calculated the additional EB and FSC eligibility. This change in eligibility requirements
resulted in improperly high payments to certain EB and FSC claimants. After a case-by-case
review, the Grant Officer disallowed $100,341 in EB costs and determined that $97,064 was
subject to debt collection. A.F. at 14, 17.
2Social Security Act, as amended,
42 U.S.C. §§ 1100-1105 (1988); Federal-State Extended Unemployment
Compensation Act of 1970 (EUCA), codified as amended in a note at 26 U.S.C. § 3304
(1988); Federal Supplemental Compensation Act of 1982 (FSCA), codified as amended in a note
at 26 U.S.C. § 3304 (1988); regulations at 20 C.F.R. Part 615 (1990) and 41 C.F.R. Part
29-70 (1984); and Employment and Training Order No. 5-85 (August 16, 1985), 50 Fed. Reg.
40,072 (1985).
11The Grant Officer suggested
in a filing on October 19, 1990, that the State's exceptions were untimely. It is not clear on the
record exactly when the State received the ALJ's September 6, 1990, decision. The State's
exceptions encompass both the March 30, 1990, and the September 6, 1990, orders. In declining
to grant interlocutory review of the March 30 orders, the Secretary stated that the ruling was
"without prejudice to the right of either party to seek Secretarial review following final
disposition by the ALJ". Supra n.6.
12Memorandum of Authorities
in Support of State of Wisconsin's Exceptions at 28-29.
Notwithstanding the provisions of
paragraph (2), an individual shall not be eligible for extended compensation unless . . . the
individual had 20 weeks of full-time insured employment, or the equivalent in
insured wages . . . . [T]he equivalent in insured wages shall be earnings covered by the
State law for compensation purposes which exceed 40 times the individual's most
recent weekly benefit amount . . .
26 U.S.C. § 3304 note (emphasis supplied).
15The appended ALJ's orders
have been modified to reflect pagination.