VIRGINIA UNEMPLOYMENT COMPENSATION
(TRICKS OF THE TRADE)
Martin Wegbreit, Esq., Director of Litigation
Central Virginia Legal Aid Society
P.O. Box 12206
Richmond, VA. 23241
804-200-6045 (V) & 804-649-8794 (F)
(E-mail)
October 2017
I.Overview
- Unemployment compensation is a state program to help workers who are unemployed
through no fault of their own. It is run by the Virginia Employment Commission (VEC). There are four steps in an unemployment compensation case. These are:
• The Deputy’s Determination.
• A hearing before an Appeals Examiner.
• The commission review before a Special Examiner.
• An appeal to state Circuit Court.
- The VEC must give the claimant a written decision at each step. The claimant can
appeal a denial at each step. The claimant must do this within 30 days of the date of the decision. The claimant may be represented by anyone at any step, except must have a lawyer to go to Court.
- Once a claimant files a claim for benefits, the former employer files a report of
separation and wage information. This tells why the claimant no longer works for them. After that, a Deputy conducts a telephonic fact finding interview with both the claimant and the former employer. The clamant givesher side of the story and responds to what the former employer said. The former employergives its side of the story and responds to what the claimant said. Statements made by parties or witnesses shall not be taken under oath and formal examination or cross-examination shall be not permitted. See, 16 Virginia Administrative Code 5-80-10(B),
The Deputy then issues a written decision within a few days.
- The party who loses the Deputy’s Determination has 30 days to file a written appeal.
This appeal is a hearing before an Appeals Examiner. Unless the claimant makes a written request for an in-person hearing, the hearing before the Appeals Examiner will be by telephone. See, 16 Virginia Administrative Code 5-80-20(B)(1). See also, Propriety of Telephone Testimony or Hearings in Unemployment Compensation Proceedings, 90 A.L.R.4th 532.
E. Any party who desires to appear in person for the hearing shall be permitted to do so provided a written request is received by the VEC before the scheduled hearing convenes. A request by a party to appear in person shall not require any other party to also appear in person; however, any other parties to the proceeding should be promptly informed of the request for in-person participation and be given the opportunity to participate in person. See, 16 Virginia Administrative Code 5-80-20(B)(2). Almost always, it is better to have an in-person hearing rather than a telephone hearing.
F. At the hearing, the Appeals Examiner will put into the record the documents that
were before the Deputy. The Appeals Examiner questions the employer and its witnesses first. The claimant or her representative has a chance to question the employer and its witnesses. The Appeals Examiner then questions the claimant and her witnesses. Claimant’s representative also may ask questions. The former employer has a chance to question claimant and her witnesses. Both sides get to make a brief closing statement. The Appeals Examiner then issues a written decision in a week or two.
G. The party who loses the Appeals Examiner’s decision has 30 days to file a written
appeal. This appeal is a review before a Special Examiner. There is no new hearing, evidence or testimony before the Special Examiner, unless there is a very good reason. Instead, the Special Examiner reviews the testimony and the documents put into the record by the Appeals Examiner.
H. If the claimant wants a copy of the transcript and the documents before the Appeals
Examiner, and if the claimant wants to present oral or written argument before the Special Examiner, the claimant must make a written request for this within 14 days of the Notice of Appeal that the VEC sends to the parties after the appeal is filed. If the claimant does not ask for a chance to present argument, the claimant will not be able to. After the argument and review of the record, the Special Examiner issues a written decision.
I. The party who loses the Special Examiner’s decision has 30 days to file an appeal in
Circuit Court. There is no new hearing, evidence or testimony in Circuit Court. Instead, the court reviews the record to see if the decision is supported by evidence and is legally correct. No new evidence is taken on appeal and the Circuit Court must uphold the decision is there is any evidence to support it.
II. Evaluating a case before it has an had an Appeals Examiner hearing
- By the time a claimant has contacted legal aid, she usually will have received an
Appeals Packet in a large white envelope. The packet will contain all of the following documents:
• Claimant’s Claim for Benefits
• Employer’s Report of Separation
• Claimant’s Statement before the Deputy
• Employer’s Statement before the Deputy
• Any documents submitted by the claimant to the VEC
• Any documents submitted by the employer to the VEC
• Deputy’s Determination
• Notice of Appeal
• Notice of Hearing
B. Claimant needs to bring the Appeals Packet along with all of the following:
• Any personnel manual or employee handbook
• Any records of discipline, reprimands, warnings or write-ups
• Any letter of termination
• Any other documents dealing with her employment
• Any other documents claimant would like to submit to the VEC
C. The list of other documents which could be helpful to your client’s case is limited only by your imagination and creativity. One rule to follow is not to commit to the case, either to the claimant or to the VEC, until you have all the documents in hand. The VEC requires a;; documents to be used at the Appeals Examiner hearing to be submitted to the VEC and all parties no later than the business day before the hearing. If you do not get these documents from the claimant before you commit to the case, you are very unlikely to get them after you commit to the case. Documents commonly used include:
• Medical records of the claimant and/or her family, if this contributed to being unable to
be at work or unable to perform the job
• FMLA records, if this contributed to being unable to be at work
• Court records, if this contributed to being unable to be at work
• Cell phone records, if there is an alleged failure to contact the employer
• Signed and dated statements from co-workers or others with personal knowledge of the
circumstances about the claimant’s separation from work and her lack of fault.
However, these statements, being hearsay, are entitled to less weight than direct
testimony.
D. Occasionally you may encounter the two (or more) employer case. This means that, upon the filing of a claim, the VEC looks back in time through your client’s work history and determines that the most recent employer for whom your client worked 30 days or longer will be financially liable for the claim. The VEC will send that employer notice, but also will send notice to any employer for whom your client worked afterwards – the less than 30 day employer. If there is any contest, your client must have lost both jobs through no fault, or minimal fault, of theirs.
E. Occasionally, you also may encounter an interstate or a multi-state claimant. An interstate claim is based solely on wages earned in a state where your client worked but no longer resides, and this is controlled by the law of the state where your client worked. A multi-state claim (also known as a combined wage claim) is based on wages earned in more than one state, and this is controlled by the law of the state where your client presently resides. 26 U.S.C. §§3304(a)(9)(A) & (B).
III.Interviewing the client
- The initial client interview is the single most important task in evaluating a case and
in winning a case. Unemployment compensation cases are heavily fact driven, and the claimant’s explanation of her separation from employment constitutes the majority (and often, all) of the client’s case. The following questions almost certainly will be asked of the claimant by the Appeals Examiner and should be asked at initial interview and in the preparation interview shortly before the hearing.
• Name & location of former employer
• Start date (month & year) & end date (month & day & year)
• Job title & job duties
• Usual days & hours
• Starting rate of pay & ending rate of pay
• Immediate supervisor at time of separation– name, job title & job duties
• Immediate supervisor’s supervisor at time of separation– name, job title & job duties
• Is there a written personnel manual or employee handbook? If so, does client have a
copy?
• Did client receive any written warnings, reprimands or discipline?
• If so, from whom, when, for what, what was client’s response & does client have a
copy?
• Did client receive any oral warnings, reprimands or discipline?
• If so, from whom, when, for what, and what was client’s response?
• Was client fired or did client quit? If fired, why? If quit, why?
• What happened on client’s last day(s) resulting in client no longer working there?
• Anything else I need to know?
• Stress the points listed below to your client.
B. (For a discharge for misconduct case). We don’t have to prove anything. The
former employer has to prove, by the greater weight of the evidence that you deliberately, intentionally and willfully committed work-related misconduct. This means you did something wrong, knew it was wrong, and did it anyway. If the evidence is evenly balanced, it means the former employer didn’t prove their case and we should win.
C. (For a voluntary quit case.) At first, we don’t have to prove anything. The former employer has to prove, by the greater weight of the evidence that you voluntarily quit your job. This means you left entirely of your own free will. If this is the case, the burden shifts to you, and you have to prove, by the greater weight of the evidence, that you had good cause to leave and left only after you made all reasonable efforts to keep your job.
D. The Appeals Examiner is most interested in what happened your last day, or several days or several weeks of employment. The farther back you go from your final day of employment, the less interested the Appeals Examiner will be. The Appeals Examiner is not there to hear about your entire work history. The Appeals Examiner only wants to know whether you lost your job through no fault, or minimal fault, of yours.
E. The Appeals Examiner has very little interest in the reason why you were fired, or whether you were fired for good cause. That’s not the issue. Virginia is an employment at will state. This means an employer may hire, refuse to hire, promote, demote, fire, or lay off employees, for any reason at all – good reason, bad reason, or no reason – as long as it is not a prohibited reason. The issue is not whether you deserved to lose your job. The issue is whether you committed deliberate, intentional and willful work-related misconduct.
F. The Appeals Examiner has very little interest in what happened to other employees, or how they were treated, except possibly to show that a rule which was enforced against you was not enforced uniformly.
G. The Appeals Examiner has very little interest in what happened after you lost your job, except possibly to show that the former employer tried to influence the testimony of witnesses against you.
H. The Appeals Examiner may consider hearsay – which can be written statements or live testimony by witnesses without personal knowledge who simply are repeating what they heard other people say. But the Appeals Examiner is required to give greater weight to live testimony by witnesses with personal knowledge, because they can be questioned and cross examined
I. Your reputation and character are not an issue and are not affected by the unemployment compensation proceedings. Everything before the VEC is confidential and can’t be used by anyone for any other purpose. It’s like Las Vegas – what happens before the VEC, stays before the VEC.
J. What happened at the Deputy Determination does not matter. The hearing before the Appeals Examiner is de novo, that is, starting brand new. This is not completely the case because the Appeals Examiner will have the documents that were in front of the Deputy, including your claim for benefits, the employer’s report of separation, and the Deputy’s version of what each of you said at the fact-finding interview. But because these all are hearsay, the Appeals Examiner gives them much less weight than what happens at the hearing.
K. At the hearing, remember your ABC’s - your Attitude, Behavior and Conduct. You want to come across as the calm, friendly and sensible person. Let the other side be angry, hostile and unreasonable.
L. There are three things you need to do. One, keep doing your job searches. Two, keep turning in your weekly claims. Even if we win the appeal, you won’t get benefits for any week for which you don’t turn in a claim. Three, if you are offered suitable work, take it. Suitable work means anything that – based on your education, experience, training, knowledge, skills and ability – you are able to do. Even if we win the appeal, you won’t get benefits if you turn down suitable work.
M. In order to claim benefits, the claimant must file a continued claim form for each week. 16 VAC 5-60-10(F). Failure to file a continued claim within 28 days after the end of the week claimed will result in the denial of benefits for that week, unless good cause is shown. Good cause for a delay in filing may be shown for any of the following reasons:
• The VEC is at fault due to circumstances attributable to the VEC.
• Filing was delayed due to circumstances attributable to the VEC.
• Claimant can show circumstances beyond her control which prevented or prohibited
her from filing earlier.
N. Final question to ask every claimant at every interview in every case (not just unemployment compensation): “Is there anything else that I need to know?”
O. And one final tip: have a calendar handy at every interview and at the hearing, so people can be certain about dates.
IV.Preparing for the hearing
A. Once you have committed to the case, mail and fax an engagement letter to the VEC and to the opposing party. At a minimum, your letter cover the points listed below.
B. If the case is not already set as an in-person hearing, request an in-person hearing. Claimants do much better at an in-person hearing, employers do much worse at an in-person hearing, and document are much easier to handle if all 3 parties (or at least 2 out of 3 of the parties) are physically present in the hearing room. Note that even if the claimant appears in person, the employer may appear either telephonically or in person. A request for an in-person hearing must be received by the VEC no later than the end of the business day prior to the hearing.
C. If the case is not already scheduled for a date & time, request that you be contacted prior to setting the hearing. The VEC is very reluctant to postpone a scheduled hearing unless there is very good cause and almost always requires some documentation to support the request. An example might be your client has started a new job and cannot miss time for the first month of employment.
D. Any documents to be used at the hearing, not previously submitted, should be submitted. As noted supra, documents to be used at the hearing must be received by the VEC and the opposing party no later than the end of the business day prior to the hearing.
E. If there are any witnesses or documents to be subpoenaed, a request for a witness subpoena and/or a subpoena duces tecum, should be made. Many different situations affect the judgment whether or not to subpoena a witness or document. Here are a few considerations:
• Who has the burden of proof? If you are doing a voluntary quit case, the burden of persuasion is on the claimant (if a voluntary quit is proven), so any necessary information to meet that burden which is in the employer’s possession should probably be sought by subpoena.
• If the issue for the hearing is one on which the employer has the burden (e.g., willful misconduct), is it likely that the employer will produce a fact witness to support the claim of misconduct? An Appeals Examiner will not necessarily credit an employer’s testimony higher than that of a claimant (depending upon the factual issues), but if there is a seemingly credible third-party who can corroborate the employer’s testimony, there is a good chance the employee’s testimony alone will not be sufficient to win. If there is a witness to an incident that the employer will not likely voluntarily produce, it may be advisable to request a witness subpoena.