Judge Grants Virginia Employment Commission Brief Extension to Respond to Class-Action Lawsuit over Slow Unemployment Claims Processing

Virginia is trailing the rest of the United States in processing certain unemployment claims. That’s led to a class-action lawsuit against the Virginia Employment Commission (VEC), filed in April. VEC Commissioner Ellen Hess asked for an extension until the end of May to respond to the lawsuit, but on Wednesday, a district judge ruled that the VEC could only have a four-day extension from May 7 until May 11.

At the end of 2020, just 4.1 percent of Virginia’s non-monetary determination cases were processed within the legally required 21 days, according to United States Department of Labor (DOL) statistics, placing Virginia last. In that quarter, Texas and Colorado topped the list with 95.7 percent and 95.6 percent, respectively. In the first quarter of 2021, Virginia’s performance got even worse, dropping to just 2.4 percent of claims processed within 21 days.

The statistic measures how quickly the state processes claims with questions about an unemployment claim that are not related to finances. According to DOL spokesman Grant Vaught, that can include things like reason for termination — was the claimant fired, or did they quit? It can also include questions of eligibility — is the claimant seeking work? Do they have other income?

“A separation or non-separation issue detected by the state needs to be resolved within 21 days from the date of detection to meet this measure.  The acceptable level of performance for this measure is 80 percent of the non-monetary determination should be made within 21 days from the date of detection,” Vaught said.

In the first quarter of 2021, only five states met the 80-percent goal. Vaught said, “All states, including Virginia, have struggled with an unprecedented claims volume since the beginning of the pandemic in March 2020 impacting state timeliness performance across the nation.”

In April, the Legal Aid Justice Center, Legal Aid Works, the Virginia Poverty Law Center, Consumer Litigation Associates, PC, and Kelly Guzzo, PLC filed a class-action lawsuit over the delayed claims processing.

“While the demand for unemployment insurance funds may have surprised the VEC at the start of the pandemic, a full year has now passed. Yet the agency is still plagued with payment delays,” the Legal Aid Justice Center said in a press release announcing the lawsuit. “Since access to additional federal unemployment benefits (such as from the CARES Act or the 2021 American Rescue Plan) requires VEC approval, these delays prevent Virginia residents from receiving federal payments, too. This despite Virginia receiving more than $38M in federal support to help bolster its administrative response to this unemployment crisis.”

That led to the VEC’s motion to postpone their response until May 28. On Thursday, Eastern District of Virginia District Court Judge Henry Hudson only granted a four-day extension until May 11.

“In the interests of securing a just and speedy determination of Plaintiffs’ claims, this matter demands immediate attention. Delays in this particular case may well have concrete and immediate impacts on Virginians struggling to make ends meet during the global pandemic,” Hudson wrote in his order.

Bipartisan Concern and JLARC Investigation

The VEC’s performance has drawn bipartisan concern and is being investigated by the Joint Legislative Audit and Review Comission (JLARC,) with a report due in November. Gubernatorial candidate Delegate Kirk Cox (R-Colonial Heights), who is one of the members of JLARC, has criticized the Northam administration for the problems.

“Despite saying over a month ago that he was ‘pleased with where Virginia is at,’ Governor Northam’s Employment Commission is still ranked last in the nation for resolving issues with unemployment claims in a timely manner. This situation should have been dealt with months ago, but instead Virginians continue to be abandoned by the Northam administration,” Cox said in a press release at the end of April.

In March, Senator Mark Warner (D-Virginia) published a letter to Northam. “I am writing this letter today to urge you to use every lever at your disposal to speed up the process by which unemployment insurance claimants can receive their benefits,” Warner said.

“It is my understanding that, following earlier passage of congressional legislation to extend [expanded pandemic-related unemployment assistance] in December, constituents in Virginia faced many delays and communication problems with the [VEC]. With the knowledge that these benefit systems were originally set to expire on December 26th, I worked with a bipartisan and bicameral group of lawmakers in the U.S. Congress to pass a relief package shortly before Christmas because it was understood that loss of benefits at this time of the year would be particularly cruel.”

Warner added, “Now, several months later, I hope you can agree that for constituents still experiencing delays the lack of pandemic unemployment insurance is unconscionable.”

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Eric Burk is a reporter at The Virginia Star and the Star News Digital Network.  Email tips to [email protected].