Most individuals who become unemployed by no fault of their own are entitled to receive weekly unemployment benefits, as administered by the Virginia Employment Commission (“VEC”). The weekly benefit amount depends about the amount of your earnings in prior quarters and can be offset by other earnings or severance income. To receive benefits, Claimants must be able and available to work. The Claimant must register with the VEC and regularly report job search efforts for each week in which he or she claims benefits.
Qualification Rules and Standards
A Claimant may be disqualified for benefits if the VEC determines that he:
(1) left work voluntarily without good cause;
(2) was terminated from employment for misconduct connected with work; or
(3) declined suitable work.
An employee that quits or otherwise leaves their job must prove “good cause” in order to receive unemployment benefits. It is not sufficient for an employee simply to cite job dissatisfaction. Rather, the employee must show that he or she has taken all of the steps to resolve any conflict that would be taken by a reasonable person desirous of retaining their employment. An employee who is forced to resign is not deemed to have left voluntarily if that employee had no real option to return to the job. By statute, “good cause” shall not include:
(1) voluntarily leaving work with an employer to become self-employed, or
(2) voluntarily leaving work with an employer to accompany or to join his or her spouse in a new locality.
To disqualify an employee from receiving unemployment benefits, the employer has the burden or proving willful misconduct. For VEC purposes, misconduct is defined as a deliberate violation of a material employer rule or recurrent conduct that manifests a willful disregard of the employer’s business interests. Simple negligence by an employee does not typically result in a disqualification. However, repeated negligence or failure to meet employer expectations after after a period of demonstrated performance may be considered misconduct, especially where an employer has sought to document warnings.
By statute, “misconduct” includes, but shall not be limited to:
(1) Failing a drug test;
(2) Making an intentionally false or misleading statement of a material nature concerning past criminal convictions in a written job application furnished to the employer, where such statement was a basis for the termination and the employer terminated the employee promptly upon the discovery thereof;
(3) A willful and deliberate violation of a standard or regulation of the Commonwealth, by an employee of an employer licensed or certified by the Commonwealth, which violation would cause the employer to be sanctioned or have its license or certification suspended by the Commonwealth; or
(4) Chronic absenteeism or tardiness in deliberate violation of a known policy of the employer or one or more unapproved absences following a written reprimand or warning relating to more than one unapproved absence.
Notwithstanding, in each of these cases, the VEC may still consider evidence of mitigating circumstances in determining whether misconduct occurred.
A Claimant also may be disqualified for refusing suitable work. In determining whether or not any work is suitable for an individual, the VEC considers the degree of risk involved to his health, safety and morals, his physical fitness and prior training, his experience, his length of unemployment and the accessibility of the available work from his residence. Work generally is not deemed suitable:
(1) If the position offered is vacant due directly to a strike, lockout, or other labor dispute;
(2) If the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality; or
(3) If as a condition of being employed the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization.
Contested Claim Procedures
The VEC utilizes a multi-step qualification procedure, which includes several levels of appeals or review.
The initial qualification decision in a contested claim is made by a Deputy Examiner of the VEC. Generally, the Deputy is tasked with reviewing the Separation Report filed by the employer and conducting telephone interviews with both the employee and employer. Following the interviews, the Deputy will issue a qualification decision.
Appeals Examiner Hearing
If either party is dissatisfied with the Deputy Determination, they may request an administrative hearing before an Appeals Examiner. The Appeals Examiner’s Hearing is the fact-finding stage of the VEC qualification process and serves as the formal record for any future appeal. For this hearing, each side may present witnesses, offer documentary evidence or cross-examine adverse witnesses. You have the right to be represented by an attorney. Following the hearing, the Appeals Examiner issues a detailed Decision citing the factual and legal basis for the qualification Decision. The hearing is recorded in the event of any future appeals.
If either party is dissatisfied with the Decision of the Appeals Examiner, they may appeal the Decision to the VEC’s Commission level. At this level of appeal, the claim is heard in review by a Special Examiner. The Special Examiner does not hold a new evidentiary hearing. Rather, he or she reviews the full record of the Appeals Examiner for proper application of law and VEC precedent. In limited instances, a case may be remanded back to the Appeals Examiner for good cause, which typically requires a showing that relevant evidence was not available at the initial hearing.
If a party believes that the Commission has misapplied the law, they may seek court review at the State Circuit Court level. Again, the Court does not hold a new trial, but hears legal argument based upon the record of the Appeal Examiner