Virginia Law

Article 5. Claims Adjudication.

A. 1. A representative designated by the Commission as a deputy, shall promptly examine the claim. On the basis of the facts found by him, the deputy shall either:

a. Determine whether or not such claim is valid, and if valid, the week with respect to which benefits shall commence, the weekly benefit amount payable and the maximum duration thereof; or

b. Refer such claim or any relevant question to the Commission's Administrative Law Division's Office of First Level Appeals or to the Commission, which shall make its determination in accordance with the procedure described in § 60.2-620.

2. When the payment or denial of benefits will be determined by the provisions of subdivision A 2 of § 60.2-612, the deputy shall promptly transmit his full finding of fact with respect to that subdivision to the Commission's Administrative Law Division's Office of First Level Appeals, which shall make its determination in accordance with the procedure described in § 60.2-620.

B. Upon the filing of an initial claim for benefits, the Commission shall cause an informatory notice of such filing to be mailed to the most recent 30-day or 240-hour employing unit of the claimant and all subsequent employing units, and any reimbursable employing units that may be liable for reimbursement to the Commission for any benefits paid. However, the failure to furnish such notice shall not have any effect upon the claim for benefits. If a claimant has had a determination of initial eligibility for benefits under this chapter, as evidenced by the issuance of compensation or waiting-week credit, payments shall continue, subject to a presumption of continued eligibility and in accordance with the terms of this subsection, until a determination is made that provides the claimant notice and an opportunity to be heard. When a question concerning continued eligibility for benefits arises, a determination shall be made as to whether it affects future weeks of benefits or only past weeks. With respect to future weeks, presumptive payment shall be made no later than 21 days after the issue arises, regardless of the type of issue. With respect to past weeks, presumptive payment shall be issued immediately, regardless of the type of issue. Notice shall be given to individuals who receive payments under such presumption that pending eligibility may affect their entitlement to the payment and may result in an overpayment that requires repayment.

C. Notice of determination upon a claim shall be promptly given to the claimant by delivering or by mailing such notice to the claimant's last known address. In addition, notice of any determination that involves the application of the provisions of § 60.2-618, together with the reasons therefor, shall be promptly given in the same manner to the most recent 30-day or 240-hour employing unit by whom the claimant was last employed and any subsequent employing unit which is a party. The Commission may dispense with the giving of notice of any determination to any employing unit, and such employing unit shall not be entitled to such notice if it has failed to respond timely or adequately to a written request of the Commission for information, as required by § 60.2-528.1, from which the deputy may have determined that the claimant may be ineligible or disqualified under any provision of this title. The deputy shall promptly notify the claimant of any decision made by him at any time which in any manner denies benefits to the claimant for one or more weeks.

D. Such determination or decision shall be final unless the claimant or any such employing unit files an appeal from such determination or decision within 30 calendar days after such notification was mailed or, if the party elects to receive electronic communications pursuant to § 60.2-121.1, electronically delivered to his last known address. Electronic delivery shall include confirmation of receipt. For good cause shown, the 30-day period may be extended. A claim that the Commission has determined to be invalid because of monetary ineligibility shall first be subject to review only upon a request for redetermination pursuant to § 60.2-629. The Commission shall issue a new monetary determination as a result of such review, and such monetary determination shall become final unless appealed by the claimant within 30 days of the date of mailing. The Commission shall clearly set out the process for requesting a redetermination and the process for filing an appeal on each monetary determination issued. Monetary ineligibility does not include an appeal on the effective date of the claim, unless the claimant has requested and received a redetermination of the monetary determination pursuant to § 60.2-629.

E. Benefits shall be paid promptly in accordance with a determination or redetermination under this chapter, or decision of the Commission's Administrative Law Division's Office of First Level Appeals, the Commission, or a reviewing court under § 60.2-625 upon the issuance of such determination, redetermination, or decision, regardless of the pendency of the period to file an appeal or petition for judicial review that is provided in this chapter, or the pendency of any such appeal or review. Such benefits shall be paid unless or until such determination, redetermination, or decision has been modified or reversed by a subsequent redetermination or decision, in which event benefits shall be paid or denied for weeks of unemployment thereafter in accordance with such modifying or reversing redetermination or decision. If a decision of the Commission's Administrative Law Division's Office of First Level Appeals allowing benefits is affirmed in any amount by the Commission, benefits shall continue to be paid until such time as a court decision has become final so that no further appeal can be taken. If an appeal is taken from the Commission's decision, benefits paid shall result in a benefit charge to the account of the employer under § 60.2-530 only when, and as of the date on which, as the result of an appeal, the courts finally determine that the Commission should have awarded benefits to the claimant or claimants involved in such appeal.

Code 1950, § 60-49; 1954, c. 203; 1966, c. 30; 1968, c. 738, § 60.1-61; 1970, c. 104; 1972, c. 692; 1974, c. 466; 1976, c. 708; 1980, cc. 408, 426; 1982, c. 363; 1986, c. 480; 1995, c. 515; 1997, c. 202; 1999, c. 79; 2013, c. 771; 2021, Sp. Sess. I, c. 539; 2022, cc. 668, 716, 754; 2024, cc. 562, 603, 746, 772.

A. 1. A representative designated by the Commission as a deputy shall promptly examine the claim. The deputy shall only examine or consider in the claim review process information or evidence from an employer or third party if the deputy (i) has provided the claimant with a reasonable opportunity to review and respond to all potentially disqualifying issues or conflicting or otherwise adverse material facts within such information or evidence, (ii) has documented all material responsive information received from the claimant pursuant to clause (i), and (iii) considers material responsive information in the deputy's evaluation of the claim. On the basis of the facts found by him, the deputy shall either:

a. Determine whether or not such claim is valid, and if valid, the week with respect to which benefits shall commence, the weekly benefit amount payable and the maximum duration thereof; or

b. Refer such claim or any relevant question to the Commission's Administrative Law Division's Office of First Level Appeals or to the Commission, which shall make its determination in accordance with the procedure described in § 60.2-620.

2. When the payment or denial of benefits will be determined by the provisions of subdivision A 2 of § 60.2-612, the deputy shall promptly transmit his full finding of fact with respect to that subdivision to the Commission's Administrative Law Division's Office of First Level Appeals, which shall make its determination in accordance with the procedure described in § 60.2-620.

B. (Effective until July 1, 2028) Upon the filing of an initial claim for benefits, the Commission shall cause an informatory notice of such filing to be mailed to the most recent 30-day or 240-hour employing unit of the claimant and all subsequent employing units, and any reimbursable employing units that may be liable for reimbursement to the Commission for any benefits paid. However, the failure to furnish such notice shall not have any effect upon the claim for benefits. If a claimant has had a determination of initial eligibility for benefits under this chapter, as evidenced by the issuance of compensation or waiting-week credit, payments shall continue, subject to a presumption of continued eligibility and in accordance with the terms of this subsection, until a determination is made that provides the claimant notice and an opportunity to be heard. When a question concerning continued eligibility for benefits arises, a determination shall be made as to whether it affects future weeks of benefits or only past weeks. With respect to future weeks, presumptive payment shall be made no later than 21 days after the issue arises, regardless of the type of issue. With respect to past weeks, presumptive payment shall be issued immediately, regardless of the type of issue. Notice shall be given to individuals who receive payments under such presumption that pending eligibility may affect their entitlement to the payment and may result in an overpayment that requires repayment.

B. (Effective July 1, 2028) Upon the filing of an initial claim for benefits, the Commission shall cause an informatory notice of such filing to be mailed to the most recent 30-day or 240-hour employing unit of the claimant and all subsequent employing units, and any reimbursable employing units that may be liable for reimbursement to the Commission for any benefits paid. However, the failure to furnish such notice shall not have any effect upon the claim for benefits.

C. Notice of determination upon a claim, the reasoning behind the decision, and a statement of case-specific facts material to the determination shall be promptly given to the claimant by delivering or by mailing such notice to the claimant's last known address. In addition, notice of any determination that involves the application of the provisions of § 60.2-618, together with the reasons therefor, shall be promptly given in the same manner to the most recent 30-day or 240-hour employing unit by whom the claimant was last employed and any subsequent employing unit which is a party. The Commission may dispense with the giving of notice of any determination to any employing unit, and such employing unit shall not be entitled to such notice if it has failed to respond timely or adequately to a written request of the Commission for information, as required by § 60.2-528.1, from which the deputy may have determined that the claimant may be ineligible or disqualified under any provision of this title. The deputy shall promptly notify the claimant of any decision made by the deputy, the reasoning behind the decision, and a statement of case-specific facts material to the determination at any time which in any manner denies benefits to the claimant for one or more weeks. As used in this subsection, the reasoning behind the decision means an explanation in plain language of (i) the law or regulation upon which the determination is based; (ii) the application of the law to the material information or evidence obtained from the claimant, employer, or third party; and (iii) the legal conclusion drawn from the application of the law to such information or evidence.

D. Such determination or decision shall be final unless the claimant or any such employing unit files an appeal from such determination or decision within 30 calendar days after such notification was mailed or, if the party elects to receive electronic communications pursuant to § 60.2-121.1, electronically delivered to his last known address. Electronic delivery shall include confirmation of receipt. For good cause shown, the 30-day period may be extended. A claim that the Commission has determined to be invalid because of monetary ineligibility shall first be subject to review only upon a request for redetermination pursuant to § 60.2-629. The Commission shall issue a new monetary determination as a result of such review, and such monetary determination shall become final unless appealed by the claimant within 30 days of the date of mailing. The Commission shall clearly set out the process for requesting a redetermination and the process for filing an appeal on each monetary determination issued. Monetary ineligibility does not include an appeal on the effective date of the claim, unless the claimant has requested and received a redetermination of the monetary determination pursuant to § 60.2-629.

E. Benefits shall be paid promptly in accordance with a determination or redetermination under this chapter, or decision of the Commission's Administrative Law Division's Office of First Level Appeals, the Commission, or a reviewing court under § 60.2-625 upon the issuance of such determination, redetermination, or decision, regardless of the pendency of the period to file an appeal or petition for judicial review that is provided in this chapter, or the pendency of any such appeal or review. Such benefits shall be paid unless or until such determination, redetermination, or decision has been modified or reversed by a subsequent redetermination or decision, in which event benefits shall be paid or denied for weeks of unemployment thereafter in accordance with such modifying or reversing redetermination or decision. If a decision of the Commission's Administrative Law Division's Office of First Level Appeals allowing benefits is affirmed in any amount by the Commission, benefits shall continue to be paid until such time as a court decision has become final so that no further appeal can be taken. If an appeal is taken from the Commission's decision, benefits paid shall result in a benefit charge to the account of the employer under § 60.2-530 only when, and as of the date on which, as the result of an appeal, the courts finally determine that the Commission should have awarded benefits to the claimant or claimants involved in such appeal.

Code 1950, § 60-49; 1954, c. 203; 1966, c. 30; 1968, c. 738, § 60.1-61; 1970, c. 104; 1972, c. 692; 1974, c. 466; 1976, c. 708; 1980, cc. 408, 426; 1982, c. 363; 1986, c. 480; 1995, c. 515; 1997, c. 202; 1999, c. 79; 2013, c. 771; 2021, Sp. Sess. I, c. 539; 2022, cc. 668, 716, 754; 2024, cc. 165, 236, 562, 603, 746, 772.

A. Appeals filed under § 60.2-619 shall be heard by the Commission's Administrative Law Division's Office of First Level Appeals. Such office, after affording the claimant and any other parties reasonable opportunity for a fair hearing, shall have jurisdiction to consider all issues with respect to the claim since the initial filing thereof. Such office shall affirm, set aside, reverse, modify, or alter the findings of fact and decision of the deputy, and may enter such order or decision with respect to the claim as such office finds should have been entered. However, no such order or decision shall affect benefits already paid except in accordance with the provisions of § 60.2-633.

B. The parties shall be duly notified of such office's decision, together with its reasons therefor, which shall be deemed to be the final decision of the Commission, unless within 30 days after the date of notification or mailing of such decision, further appeal is initiated pursuant to § 60.2-622. However, for good cause shown the 30-day period may be extended.

Code 1950, § 60-50; 1968, c. 738, § 60.1-62; 1976, c. 708; 1980, c. 426; 1986, c. 480; 1995, c. 515; 1999, c. 79; 2024, cc. 562, 603.

Repealed by Acts 2024, cc. 562, 603, cl. 2, effective July 1, 2024.

A. The Commission (i) may on its own motion affirm, modify, or set aside any decision of an appeals examiner on the basis of the evidence previously submitted in such case, or direct the taking of additional evidence by an appeals examiner, or receive such evidence itself, or (ii) shall permit any of the parties to such decision to initiate further appeals before it. The Commission may remove to itself or transfer to another appeals examiner the proceedings on any claim pending before an appeals examiner. Any proceeding so removed to the Commission shall be heard in accordance with the requirements of § 60.2-620. The Commission shall promptly notify the interested parties of its findings and decision.

B. 1. Any decision of the Commission, upon a hearing on appeal, shall become final 10 days after the date of notification or mailing, and judicial review shall be permitted the claimant or any interested party claiming to be aggrieved. The Commission shall be deemed to be a party to any judicial action involving any such decision, and shall be represented in any such judicial action by the Office of the Attorney General.

2. Any such decision by the Commission involving (i) whether an employing unit constitutes an employer or (ii) whether services performed for or in connection with business of an employing unit constitute employment for such employing unit, from which no judicial review is had pursuant to subsections C and D of § 60.2-500, shall be conclusive in any subsequent judicial proceedings involving liability for taxes by the Commission against any employing unit which was a party to the proceedings held before the Commission.

C. The Commissioner shall have the power to designate a special examiner to hear appeals to the Commission under this section. The Commissioner may authorize and empower such special examiner to decide any appeal so heard, in which event the decision of the special examiner shall be the final decision of the Commission under this section, subject to judicial review under § 60.2-625.

Code 1950, § 60-52; 1968, c. 738, § 60.1-64; 1977, c. 445; 1986, c. 480; 1995, c. 515; 1996, c. 106; 2005, cc. 47, 91; 2024, cc. 562, 603.

A. The manner in which disputed claims shall be presented, reports required from the claimant and from employers, the conduct of hearings and appeals before any deputy, appeals examiner, or the Commission, and transcripts prepared shall be in accordance with regulations prescribed by the Commission for determining the rights of the parties. Such regulations need not conform to common law or statutory rules of evidence and other technical rules of procedure. A full and complete record shall be kept of all proceedings in connection with a disputed claim. All testimony at any hearing upon a disputed claim shall be recorded, but need not be transcribed unless the disputed claim is further appealed and a timely request for a hearing before the Commission has been made in accordance with regulations prescribed by the Commission. In lieu of providing a transcript, and with the consent of all parties who participated in the hearing, the Commission may provide a digital or other electronic recording of the testimony taken at any hearing, which recording may be transmitted in any medium provided that the recording is protected from unauthorized interception by reasonable security measures.

B. Information furnished the Commission under the provisions of this chapter shall not be published or be open to public inspection, other than to public employees in the performance of their public duties. Neither such information, nor any determination or decision rendered under the provisions of § 60.2-619, 60.2-620 or 60.2-622, shall be used in any judicial or administrative proceeding other than one arising out of the provisions of this title; however, the Commission shall make its records about a claimant available to the Workers' Compensation Commission if it requests such records. The Commission may also, in its discretion, furnish copies of the transcript of hearings to any party.

C. Notwithstanding the provisions of subsection B, the Commission shall, on a reimbursable basis, furnish wage and unemployment compensation information contained in its records to the Secretary of Health and Human Services and Virginia's child support enforcement agency for their use as necessary for the purposes of the National Directory of New Hires established under § 453 (i) of the Social Security Act.

D. Notwithstanding the provisions of subsection B, the Commission shall, upon written request, furnish any agency or political subdivision of the Commonwealth such information as it may require for the purpose of collecting fines, penalties, and costs owed to the Commonwealth or its political subdivisions. Such information shall not be published or used in any administrative or judicial proceeding, except in matters arising out of the collection of fines, penalties, and costs owed to the Commonwealth or its political subdivisions.

Code 1950, § 60-53; 1968, c. 738, § 60.1-65; 1972, c. 764; 1986, c. 480; 1988, c. 766; 1994, c. 203; 1996, cc. 108, 130; 1997, c. 385; 1998, cc. 91, 745; 2012, c. 50; 2024, cc. 562, 603.

A. Any party to a compensation hearing of the Virginia Employment Commission may employ the use of a court reporter to record for transcription the proceeding, provided it is done at the party's own expense.

B. In the event the Commission's transcript of the proceeding is lost, damaged, or parts are missing, a transcript existing as a result of subsection A of this section may be used in addition to any full or partial Commission transcript.

1986, c. 129, § 60.1-65.1.

Witnesses subpoenaed pursuant to this chapter shall be allowed expenses at a rate fixed by the Commission. Such expenses shall be deemed a part of the expense of administering this title.

Code 1950, § 60-54; 1968, c. 738, § 60.1-66; 1986, c. 480.

A. Within 30 days after the decision of the Commission upon a hearing pursuant to § 60.2-622 has been mailed, any party aggrieved who seeks judicial review shall commence an action in the circuit court of the county or city in which the individual who filed the claim was last employed. In such action against the Commission, the Commission and any other party to the administrative procedures before the Commission shall be named a defendant in a petition for judicial review. Such petition shall also state the grounds upon which a review is sought; it shall be served upon a member of the Commission or upon such person as the Commission may designate, and such service shall be deemed completed service on all parties. There shall be left with the party so served as many copies of the petition as there are defendants, and the Commission shall forthwith mail one such copy to each such defendant. With its answer, the Commission shall certify and file with the court all documents and papers and a transcript of all testimony taken in the matter, together with its findings of fact and decision therein. In any judicial proceedings under this chapter, the findings of the Commission as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. Such actions and the questions so certified shall be heard in a summary manner at the earliest possible date. An appeal may be taken from the decision of the court to the Court of Appeals in conformity with Part Five A of the Rules of Supreme Court and other applicable laws.

B. From any circuit court decision involving (i) the provisions of § 60.2-612 or § 60.2-618, (ii) whether an employing unit constitutes an employer or (iii) whether services performed for or in connection with the business of an employing unit constitute employment for such employing unit, the Court of Appeals shall have jurisdiction to review such decision regardless of the amount involved in any claim for benefits. It shall not be necessary, in any proceeding under this chapter, to enter exceptions to the rulings of the Commission or an appeals examiner, and no bond shall be required upon an appeal to any court. Upon the final determination of such judicial proceeding, the Commission shall administer the Unemployment Compensation Fund in accordance with such determination.

C. The Commission shall have the right to appeal a decision of a circuit court in any proceeding under this chapter.

1980, c. 463, § 60.1-67.1; 1982, c. 24; 1984, c. 703; 1986, c. 480; 1987, c. 567; 1988, c. 766; 1996, c. 573; 2024, cc. 562, 603.

In the discharge of the duties imposed by this title, the chairman of an appeal tribunal and any duly authorized representative or member of the Commission shall have power to administer oaths and affirmations, take depositions, certify to official acts, and issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records deemed necessary as evidence in connection with a disputed claim or the administration of this title.

Code 1950, § 60-36; 1968, c. 738, § 60.1-41; 1986, c. 480.

A. In case of contumacy by, or refusal to obey a subpoena issued to any person, any court of this Commonwealth within the jurisdiction of which the inquiry is carried on or within the jurisdiction of which such person guilty of contumacy or refusal to obey is found or resides or transacts business, upon application by the Commission or its duly authorized representative, shall have jurisdiction to issue to such person an order requiring such person to appear before an appeal tribunal, a commissioner, the Commission, or its duly authorized representative, in order to produce evidence or to give testimony concerning the matter under investigation or in question. Any failure to obey such court order may be punished by the court as contempt.

B. Any person subpoenaed by the Commission who, without just cause, fails or refuses to attend and testify or to answer to any lawful inquiry or to produce books, papers, correspondence, memoranda and other records, when it is within his power to do so, shall be guilty of a Class 1 misdemeanor.

C. Each day any violation of such court-issued subpoena, court order, or Commission-issued subpoena continues shall be deemed to be a separate offense.

Code 1950, § 60-37; 1968, c. 738, § 60.1-42; 1986, c. 480; 2020, c. 1261.

No person shall be excused from attending and testifying or from producing books, papers, correspondence, memoranda, and other records before the Commission in any cause or proceeding before the Commission, on the ground that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him or subject him to a penalty or forfeiture. However, no individual shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, documentary or otherwise, except that such individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying.

Code 1950, § 60-38; 1968, c. 738, § 60.1-43; 1986, c. 480.

Notwithstanding any other provisions of this title, the Commission may, at any time within one year from the date the deputy's determination becomes final pursuant to § 60.2-619, redetermine any monetary determination issued by a deputy from which no appeal was taken by the claimant. Notice of any such redetermination shall be given promptly to the interested parties, and an appeal from such redetermination may be filed within the time and in the manner prescribed for an appeal from any original determination. If no such appeal is filed such redetermination shall be final. Any redetermination hereunder shall be limited to monetary determinations containing (i) an error in computation or (ii) newly discovered wages of the claimant pertinent to such determination.

Code 1950, § 60-56; 1968, c. 738, § 60.1-68; 1986, c. 480.

The Commission may, in its discretion, at any time before a determination or decision becomes final pursuant to § 60.2-619 or 60.2-622, with good cause set aside or modify any such determination or decision.

1981, c. 74, § 60.1-68.1; 1986, c. 480; 2024, cc. 562, 603.

Repealed by Acts 2024, cc. 562, 603, cl. 2, effective July 1, 2024.