TOP 100 80 THINGS YOU NEED TO KNOW ABOUT VIRGINIA UNEMPLOYMENT COMPENSATION LAW

2010 Annual Statewide Virginia Legal Aid Conference November 3 - 5, 2010 Richmond, Virginia

Martin Wegbreit, Senior Managing Attorney Central Virginia Legal Aid Society 101 West Broad Street, Suite 101 P.O. Box 12206 - Richmond, VA. 23241 804-200-6045 (Direct) & 804-649-8794 (Fax) marty@cvlas.org

1. Employers pay for it all, but that doesnt mean they get it all.
Virginia employers pay all costs of the program - state benefits & administration.

2. Unemployment compensation may be your clients only remedy for an unjust discharge.
Virginia has an employment at will doctrine. 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.

3. If you work and get paid, youre covered, unless excluded.

Covered employment is all compensated services except those specifically excluded by statute. Code of Virginia 60.2-212.

4. With your clients base period, as with life, timing is everything.

Must earn at least $3,000 in wages in the two highest calendar quarters in the base period, usually, the first four of the last five completed calendar quarters. If not enough earnings , then the base period is the last four completed calendar quarters (Alternate Base Period). Code of Virginia 60.2-204.

5. Interstate and multi-state claimants may look the same, but are treated differently.
Interstate claim - based solely on wages earned in a state where client worked but no longer resides. Controlled by the law of the state where client worked. Multi-state claim - based on wages earned in more than one state. Controlled by the law of the state where client presently resides. 26 U.S.C. 3304(a)(9)(A) & (B).

6. In the two employer case, you simply have to win the case two times.
VEC determines that the most recent employer for whom claimant worked 30 days or longer will be financially liable. VEC sends that notice to that employer and to any employer for whom claimant worked afterwards. Claimant must have lost both jobs through no fault, or minimal fault.

7. Undocumented means uncompensated.

Benefits shall not be paid on the basis of services performed by an alien unless such individual was lawfully admitted for permanent residence at the time such services were performed, was lawfully present for purposes of performing such services, or was permanently and lawfully residing in the United States under color of law at the time such services were performed. Code of Virginia 60.2-617.

8. When they cut your clients hours, your client cant ditch the job.
A worker is unemployed if not working and no earning any money. A worker is partially unemployed working less than full time and earning less money than the weekly unemployment compensation would be. Code of Virginia 60.2-204 and 16 VAC 5-60-10 and 5-60-20.

9. It may be a recession, but you still must be able, available & actively seeking work.
A claimant must be able to work, must be available for work, and must make an active search for work each week. Code of Virginia 60.2-612(7).

10. There are three things you must say to every client after every meeting.
One, keep doing your job searches. Two, keep turning in weekly claims. Three, if you are offered suitable work, take it.

11. Late weekly claims still are worth the bureaucratic nightmare.
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. ! The VEC is at fault due to circumstances attributable to VEC. ! Filing was delayed due to circumstances attributable to VEC. ! Circumstances beyond claimants control which prevented or prohibited claimant from filing earlier.

And now . . . a commercial break

! Advocates continue to see significant numbers of people illegally denied unemployment compensation. ! A UI Creative Advocacy Team has been formed to look for claimants who - at any time during the last 2 years - have experienced these issues and/or lost benefits due to these issues:

! After 28 days without reporting job searches, the UI account was closed and they were blocked from reporting job searches. ! They delayed filing because they did not know a paper application exists and/or they could not get through on the phone. ! They could not get through on the phone to report job searches and could not use the VEC website to report. ! They did not understand their duties to report weekly job searches and suffered reduced benefits because of the lack of understanding or lack of adequate notice. " They never started to report even though they had a deputy interview and got a decision. " They lost at the deputy determination, appealed but stopped reporting.

" They lost at the appeal level and stopped reporting. " They won at the Commission level, but their benefits were reduced for failing to report. ! Anyone who filed a request to reopen after a 28 To join, or for more information, day closure.

contact: Carolyn Kalantari, LAJC, 434-977-0553, x 113, carolyn@justice4all.org, or Abigail Turner, LAJC, 434-977-0553, x 138, abigail@justice4all.org

12. (Not) working 9:00 to 5:00 still may allow your client to be available for work.
An individual whose type of work is typically performed by people working two or more shifts in a 24-hour period shall not be deemed unavailable for work if the individual is currently enrolled in one or more classes or education related to employment, provided that the enrollment would only limit the individuals availability for one shift and the individual is otherwise available to work any of the other shifts. Code of Virginia 60.2-612(7)(c)

13. Your client needs to talk to the VEC before going to school or training.
No otherwise eligible individual shall be denied benefits for any week because he is in training with the approval of the Commission . . . nor shall such individual be denied benefits for any week in which he is in training with the approval of the Commission . . . by reason of the application of the provisions in subdivision 7 of 60.2-612 relating to availability for work, or the provisions of subdivision 3 of 60.2-618 relating to failure to apply for, or a refusal to accept, suitable work. Code of Virginia 60.2-613(A)

14. Your client has 7# - 9 minutes to make his/her case in front of the Deputy.
Each Deputy issues 25-30 determinations per day. Each Deputy has about 15 to 18 minutes for each decision. If your client gets # of that time, thats 7# to 9 minutes.

15. Unless your client sees or hears the evidence, the Deputy shall not consider it.

No information or evidence shall be considered by the deputy unless the claimant has been given the opportunity to see or hear it and comment upon it. 16 VAC 5-80-10(A).

16. Employer protests: the deadline really is not forever.

If the employer had no knowledge of the claimant receiving unemployment compensation, the VEC says there is no time limit as to when the employer can file a protest, e.g., Employers Report of Separation and Wage Verification was not sent back by the employer The issue is not whether the form was sent back, but if the form & the qualification determination were was sent out . Unless the employer can prove not being sent these items, there is no basis for a late-filed protest.

17. Pay me now & pay me later: employer appeals do not suspend benefits.
A state unemployment compensation program must provide for methods of administration . . . reasonably calculated to insure full payment of benefits when due. 42 U.S.C. 503(a)(1). State procedures requiring that payment of benefits be suspended when employer appealed from hearing decision in favor of claimant are invalid. California Department of Human Resources v. Java, 402 U.S. 121, 91 S.Ct. 1347, 28 L.Ed.2d 666 (1970).

18. Your client has a (sort of) de novo appeal to the Appeals Examiner (AE).
The hearing before the AE is de novo. The AE will have the documents that were in front of the Deputy: $ Claim for benefits $ Employers report of separation $ Deputys version of what each party said at the fact- finding interview Because these all are hearsay, the AE must give them much less weight than what happens at the hearing.

Any party who desires to appear in person for the hearing shall be permitted to do so provided a timely request is received by the commission. A request shall be deemed timely if it is received by the commission before the scheduled hearing convenes. 16 VAC 5-80-20(B)(2).

20. Be schizophrenic: if you ask for inperson hearing, assume youll have a split hearing.
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 inperson participation and be given the opportunity to participate in person. 16 VAC 5-80-20(B)(2).

The term voluntary connotes unconstrained by interference; unimpelled by anothers influence; spontaneous; acting of oneself . . . resulting from free choice. . . . An employees intention to quit may be discerned from words or conduct inconsistent with the maintenance of an employer/employee relationship. Shuler v. Virginia Employment Commission, 9 Va.App. 147, 384 S.E.2d 122 (1989).

22. It will be better if you resign is a discharge.

If a claimant is asked to resign from a job instead of being fired, that is not a voluntary quit. The VEC should treat that as a discharge, and decide if the claimant committed work-related misconduct. Howard v. Woodward & Lothrop, Commission Decision #5669-C (1972).

23. Constructive eviction, constructive desertion, why not constructive discharge?

To establish constructive discharge, a plaintiff must show that the termination was in violation of clear and unequivocal public policy of this Commonwealth that no person should have to suffer such indignities and that the employers actions were deliberate and created intolerable working conditions. Gochenour v. Beasley, 47 Va.Cir. 218 (Rockingham Co. - 1998).

24. Would you like me to quit? is not a quit.

An offer to quit is not a formal resignation and instead the employers choice to accept such an offer constitutes a [separation] by the employer for reasons which would not be disqualifying under the provisions of the Act. Close v. Guardian Care of Great Bridge, Commission Decision #11278-C (1978).

25. You cant quit on me, youre fired! may mean your client gets two weeks of benefits.
An unemployed individual shall be eligible to receive benefits for any week only if the Commission finds that . . . he has given notice of resignation to his employer and the employer subsequently made the termination of employment effective prior to the date of termination as given in the notice, but in no case shall unemployment compensation benefits awarded under this subdivision exceed two weeks. Code of Virginia 60.2-612(8). Under this section, claimant is entitled to compensation for the portion of her unemployment that was involuntary.

The burden is upon the employer to produce evidence which establishes a prima facie case that the claimant left his employment voluntarily. The employer assumes the risk of non-persuasion in showing a voluntary leaving. Kerns v. Atlantic American, Inc., Commission Decision #5450-C (1971).

27. Voluntary Quit: good cause can mean a lot more than that.
The good cause requirement is met by a reason which would cause a reasonable person, desirous of retaining his employment, to relinquish his job. Phillips v. Dan River Mills, Inc., Commission Decision #2002-C (1955). When therefore the pressures of real, not imaginary, substantial, not trifling, reasonable, not whimsical, circumstances compel the decision to leave employment, the decision is voluntary in the sense that the worker has willed it, but involuntary because outward pressures have compelled it. . . . The pressure of necessity, or legal duty, or family obligations, or other overpowering circumstances and his capitulation to them transform what is ostensibly voluntary unemployment into involuntary unemployment. Whisnant v. Newport News Shipbuilding & Dry Dock Company, Commission Decision #UCX-74 (1974).

28. Voluntary Quit: no reasonable alternative to quitting can mean a lot more than that.

When determining whether good cause existed for a claimant to voluntarily leave employment, the commission and the reviewing courts must first apply an objective standard to the reasonableness of the employment dispute and then to the reasonableness of the employees efforts to resolve that dispute before leaving the employment. Umbarger v. Virginia Employment Commission, 12 Va.App. 431, 404 S.E.2d 380 (1991).

29. Voluntary Quit: if your client got a better job, except it wasnt, you can get benefits.
A claimant may quit with good cause to take a new job, where it is in the claimants best interest, where the new job is of a nontemporary duration, and where the claimant actually obtains it. Taylor v. Tazewell County School Board, Commission Decision #SUA-196 (1977).

30. Voluntary Quit: transportation is not always your clients responsibility.

Claimants refusal to accept a job transfer due to transportation problems, when the employer relocates to another town, is not a voluntary leaving at all. Bramwell Manufacturing Company, Commission Decision #6216-C (1974).

31. Voluntary Quit: supervisor harassment you dont have to take it.

When claimant quit after continuing insults and degradation of her position by the one individual to whom she must look for guidance and help in the proper performance of her duties, claimant was determined to have voluntarily quit with good cause. Silco Stores, Inc., Decision #UI-71-2859 (1972).

32. Misconduct: your client doesnt have to prove anything.

To establish misconduct the employer has the burden of proving that the employee deliberately or willfully violated a company rule. Bell Atlantic v. Virginia Employment Commission, 16 Va.App. 741, 433 S.E.2d 30 (1993). The burden to show misconduct rests with the employer. The burden is not carried by mere allegation, but rather, it is necessary to present specific detailed information to establish that it is more likely than not that the misconduct actually occurred. Harris v. Tidewater Regional Transit, Commission Decision #24516-C (1985).

33. A hearing, not an autobiography: the AE has little interest in the whole work history.

The Appeals Examiner is most interested in what happened your clients last day, several days, or several weeks of employment. The farther back your client goes from the final day of employment, the less interested the Appeals Examiner will be.

34. Other than misconduct, the AE has little interest in why your client was discharged.
An employers right to discharge an employee is a different issue from whether the employee is disqualified from receiving unemployment compensation as a result of deliberate and willful work-related misconduct. Blake v. Hercules, 4 Va.App. 270, 356 S.E. 453 (1987).

35. Other than consistency, the AE has little interest in hearing about others.

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 the claimant was not enforced uniformly.

36. Its over when its over: the AE has little interest in what happened after the discharge.

The Appeals Examiner has very little interest in what happened after the claimant lost the job, except possibly to show that the former employer tried to influence the testimony of witnesses .

 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.

38. What happens at the VEC stays at the VEC.

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 . . . shall be used in any judicial or administrative proceeding other than one arising out of the provisions of this title. Code of Virginia 60.2-623(B).

39. Your client needs to remember his/her A - B - C s: Attitude, Behavior and Conduct.
At the hearing, your client should come across as the calm, friendly and sensible person. Let the other side be angry, hostile and unreasonable.

WORK RULES
1.! SICKNESS: No excuses will be acceptable. We will no longer accept your doctors statement as proof of illness, as we believe that if you are able to go to the doctor, you are able to come to work. 2.! LEAVE OF ABSENCE FOR AN OPERATION: We no longer are allowing this practice. We hired you as you are, and to have anything removed certainly makes you less than we bargained for. 3.! DEATH - YOUR OWN: This will be accepted as an excuse, but we would like at least two weeks notice, as we feel it is your duty to teach someone else your job. 4.! QUANTITY OF WORK: No matter how much you do, youll never do enough. 5.! QUALITY OF WORK: The minimum acceptable level is perfection. 6.! ADVICE FROM THE BOSS: Eat a live toad the first thing in the morning and nothing worse will happen to you the rest of the day. 7.! THE BOSS IS ALWAYS RIGHT.

40. Misconduct: unless your client is a mind reader, he/she doesnt know the work rules.
An employee is guilty of misconduct connected with his work when he deliberately violates a company rule reasonably designed to protect the legitimate business interests of his employer, or when his acts or omissions are of such a nature or so recurrent as to manifest a willful disregard of those interests and the duties and obligations he owes his employer. Branch v. Virginia Employment Commission, 219 Va. 609, 249 S.E.2d 180 (1978).

41. Misconduct: even if your client broke a rule, it has to be an important rule.
An employee is guilty of misconduct connected with his work when he deliberately violates a company rule reasonably designed to protect the legitimate business interests of his employer. Branch v. Virginia Employment Commission, 219 Va. 609, 249 S.E.2d 180 (1978). If, however, the record contains evidence which mitigates the rule violation, the trier-of-fact must balance this against the legitimate business interest being protected to determine whether the employee demonstrated a willful disregard of the employer's interest. Virginia Employment Commission v. Gantt, 7 Va.App. 631, 376 S.E.2d 808 (1989).

42. Misconduct: clarity of the rule is in the eye of the beholder.

Under Virginia common law, a writing is construed against the party who prepared it. Winn v. Aleda Construction Company, 227 Va. 304, 315 S.E.2d 193 (1984); Graham v. Commonwealth, 206 Va. 431, 143 S.E.2d 831 (1965); Worrie v. Boze, 191 Va. 916, 62 S.E. 2d 876 (1951).

43. Misconduct: in drug test cases, employer must prove chain - chain chain of custody. Misconduct includes, but is not limited

to . . . An employee's confirmed positive test for a nonprescribed controlled substance. . . . Such test shall have been performed, and a sample collected, in accordance with scientifically recognized standards by a laboratory accredited by the United States Department of Health and Human Services, or the College of American Pathology, or the American Association for Clinical Chemistry, or the equivalent, or shall have been a United States Department of Transportationqualified drug screen conducted in accordance with the employer's bona fide drug policy. Code of Virginia 60.2-618(2) (b)(1).

44. Misconduct: in job application case, was what your client didnt disclose really a crime?
Misconduct includes, but is not limited to . . . An employee's intentionally false or misleading statement of a material nature concerning past criminal convictions made 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. Code of Virginia 60.2-618(2)(b)(2).

45. Misconduct: in an employer license case, did your client really put the company at risk?
Misconduct includes, but is not limited to . . . 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. Code of Virginia 60.2-618(2)(b) (3).

46. Misconduct: if absent or tardy, first see if the employer followed the statute.
Misconduct includes, but is not limited to . . . 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. Code of Virginia 60.2-618(2)(b)(4).

47. Misconduct: illness is not a choice, and seldom is misconduct.

Mere absenteeism attributable to illness or injury will not amount to misconduct. The sine qua non of wanton disregard of the employers interest or malevolent intent is absent in such cases. Hancock v. Mr. Casuals, Inc., Commission Decision #6355C (1974) It cannot be said that where a claimant is absent due to illness and such illness has been substantiated by competent medical evidence, that such absences, in and of themselves, reflect any willful or wanton disregard of the employer's interest. Newport News Shipbuilding Dry Dock Company, Commission Decision #8252-C (1976)

48. Misconduct: work performance allows you to be incompetent and still get benefits.

Mere inefficiency, incapability, mistake or misjudgment has never been tantamount to misconduct. Miller v. J. Henry Holland Corporation, Commission Decision #7470-C (1976); Craig v. Colley Avenue Office Supplies, Commission Decision #23759-C (1984); Borbas v. V.E.C., 17 Va.App. 720, 440 S.E.2d 630 (1994).

49. Misconduct: theft is a serious accusation that requires serious proof.

The mere fact that there was a cash shortage is not proof of work-related misconduct. Girma v. News Emporium, Inc. of Virginia, Commission Decision #42083-C (1993).

50. Misconduct: insubordination means not following reasonable orders.

Non performance of assigned duties may or may not constitute misconduct depending upon the reason for the nonperformance. Craig v. Colley Avenue Office Supplies, Commission Decision #23759-C (1984).

51. Misconduct: workplace violence shouldnt apply to the non-aggressor.

The general rule . . . that fighting on the job is a willful and wanton disregard of standards of behavior. . . is not without exception, however, as in the present case, where the claimant has shown by clear and convincing evidence that he was not the aggressor. Cooper v. Newport News Shipbuilding, Commission Decision #19538-C (1982); Bryant v. United Parcel Service, Commission Decision #18879-C (1982); and Bowman v. Budd Trailer Division, Commission Decision #13232-C (1980).

52. Misconduct: theres no such thing as an intentional accident.

Mere mistake or carelessness does not amount to the deliberate or intentional conduct required for misconduct. Israel v. Virginia Employment Commission, 7 Va. App. 169, 372 S.E.2d 207 (1988); Borbas v. Virginia Employment Commission, 17 Va. App. 720, 440 S.E.2d 630 (1994).

53. Misconduct: arrested, jailed and convicted = out of luck.

An individual shall be disqualified for benefits upon separation from the last employing unit for whom he has worked 30 days or 240 hours or from any subsequent employing unit: . . . 5. If such separation arose as a result of an unlawful act which resulted in a conviction and after his release from prison or jail. Code of Virginia 60.2-618(5) .

54. Excuses, excuses, excuses: evidence of mitigation can win the case.
Mitigating factors to be considered in determining whether an employees conduct (in Coopers case, profanity) constitutes disqualifying work-related misconduct: the severity of the language used; the quantity of the language used, i.e., whether it was a lengthy barrage or a brief incident; whether the language was spoken in the presence of customers, clients or other employees; whether the employee had a record of misconduct; whether prior warnings were given regarding employee's conduct; and whether the language was provoked by the employer. Kennedys Piggly Wiggly Stores, Inc. v. Cooper, 14 Va. App. 701, 706, 419 S.E.2d 278, 281 (1992).

Enforcing the employer the employer

the rule: snooze s, loses.

Robinson and the commission contend, however, that even if Robinson was dismissed for misconduct, the three month delay in terminating her employment amounted to condonation of her acts and was a mitigating circumstance. We agree. . . . Various factors may be considered in determining mitigation, including the degree of enforcement of the employers rule and the delay in enforcing the rules. Robinson v. Hurst Harvey Oil, Inc., 12 Va.App.936, 940, 407 S.E.2d 352, 354 (1991).

56. Suitable work: one size does not fit all.

The determination of when work is suitable and when it is unsuitable, under the facts and circumstances of each particular case, has been delegated by statute to the Commission. . . . In making that determination, Code 60.2-618(3)(b) directs the Commission to consider the degree of risks involved to the employees 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. Johnson v. Virginia Employment Commission, 8 Va.App. 441, 382 S.E.2d 476 (1989).

57. Witnesses: think about whether you really need them.

! Who has the burden of proof? ! If the issue is good cause for voluntary quit, is a witness or document needed? ! If the issue is willful work-related misconduct, is it likely that the employer will produce a fact witness to support that claim? ! If the defense is mitigation, is a witness or document needed? ! Is the witness still employed by the employer? ! How large is the employer? ! Is claimant almost certain to lose without an alibi or corroborating witness?

58. Subpoenas: ask early, ask often and ask everyone.

The VEC may issue witness subpoenas or subpoenas duces tecum for documents. A request for a subpoena may be denied is there is no showing of relevance to the subject of the appeal, if it appears the request would only produce cumulative evidence or testimony, or if it appears that the request would not serve the interest of the party making it. 16 VAC 5-80-40 (B).

59. Clients prehearing preparation is the single most important thing to winning a case.
! Meet with your client a few days before the hearing. ! Client will have forgotten some key parts of their testimony. ! Client needs to know in advance what will happen. ! Have a calendar handy at every interview & at the hearing, so people can be certain about dates.

60. Assume employer representative knows nothing & use absent witness presumption.
Failure to call an available witness possessing peculiar knowledge concerning facts essential to a partys case, direct or rebutting, or to examine such witness as to the facts covered by his special knowledge, especially if the witness be favorable to the party's contention, relying instead upon the evidence of witnesses less familiar with the matter, gives rise to an inference sometimes denominated a strong presumption of law that the testimony of such uninterrogated witness would not sustain the contention of the party. Altavista Cotton Mills, Inc. v. Lane, 133 Va. 1, 112 S.E. 637 (1922); Robbins v. Old Dominion Power Company, 204 Va. 390, 131 S.E.2d 274 (1963).

61. Lack of personal knowledge = lack of knowledge.

Exploit the fact that the employer representative is not testifying from personal knowledge. Ask the employer representative to agree that he or she has no first hand personal knowledge, but has based his or her testimony upon what others said.

62. Testimony rules, hearsay drools.

When weighing documentary hearsay not under oath that cannot be cross-examined against direct testimony under oath that is subject to examination and crossexamination, the latter outweighs the former. Herring v. Newport News Shipbuilding & Dry Dock Co., Commission Decision #6470-C (1974); Hodges v. Cooper Wood Products, Commission Decision #6718-C (1975).

63. Credibility fights: dont get in one unless you can win it.
The Appeals Examiners credibility determination is entitled to respect and should not be reversed unless there is some clear basis for doing do. Foster v. A&B Contract Service Company, Commission Decision #26249-C (1986).

64. Closing statement: you get the last word so, by all means, stick it to them.
First-hand testimony based on personal knowledge outweighs hearsay. Claimant had a good work record and did not know his or her job was in jeopardy. Any violation of a rule was not deliberate, intentional or willful. Rule violated did not serve the legitimate business interests of the employer. Employer did not consistently enforce its own policies. Employer condoned any misconduct that occurred more than several weeks before the loss of job. Poor job performance or poor judgment, without more, is not misconduct. Employer failed to prove its case by the greater weight of the evidence.

65. Remember the Appeals Examiners duty to assist a pro se party.

The appeals examiner shall conduct the hearing in such a manner as to ascertain the substantive rights of the parties without having to be bound by common law, statutory rules of evidence, or technical rules of procedure. . . . 1. Where a party is unrepresented, the appeals examiner shall assist that party in presenting his case and testing the case of the opposing party. 16 VAC 5-80-20(F)(1)

66. There are two sides to every story, and the decision ought to reflect that.
Except as otherwise provided by this chapter, all appeals to the commission shall be decided on the basis of a review of the evidence in the record. The commission, in its discretion, may direct the taking of additional evidence after giving written notice of such hearing to the parties, provided: . . . 2. The record of the proceedings before the appeals examiner is insufficient to enable the commission to make proper, accurate, or complete findings of fact and conclusions of law. 16 VAC 5-80-30(B)(2)

67. It aint over til its over, but the record closes before its over.
Except as otherwise provided by this chapter, all appeals to the commission shall be decided on the basis of a review of the evidence in the record. The commission, in its discretion, may direct the taking of additional evidence after giving written notice of such hearing to the parties, provided: 1. It is shown that the additional evidence is material and not merely cumulative, corroborative or collateral, could not have been presented at the prior hearing through the exercise of due diligence, and is likely to produce a different result at a new hearing. 16 VAC 5-80-30(B)(1).

68. Filling the void: you can deal with the missed Appeals Examiner hearing.
Any party who is unable to appear for the scheduled hearing, or who appeared but wishes to present additional evidence, may request a reopening of the case, which will be granted if good cause is shown. 16 VAC 5-80-20(I). In order to show good cause to reopen a hearing, the party making such a request must show that he was prevented or prohibited from participating in the hearing by some cause which was beyond his control and that, in the face of such a problem, he acted in a reasonably prudent manner to preserve his right to participate in future proceedings. Engh v. United States Instrument Rentals, Commission Decision #25239-C (1985).

69. You can extend the 30 day appeal period with the Saturday - Sunday Holiday rule.
When an act of the General Assembly specifies a maximum period of time in which a legal action may be brought and the last day of that period falls on a Saturday, Sunday, legal holiday, or day or part of a day on which the clerk's office is closed as authorized by an act of the General Assembly, the action may be brought on the next day that is not a Saturday, Sunday, legal holiday, or day or part of a day on which the clerks office is closed as authorized by an act of the General Assembly. Code of Virginia 1-210(C). Computation of time.

70. Appealing late: the difficult we do first, the impossible takes longer.
An appellant has shown good cause to extend the statutory appeal period if factors or circumstances beyond his control operated to prevent him from filing an appeal within the statutory time period. Barnes v. Economy Stores, Inc., Commission Decision #8624-C (1976); Carr v. Huyck Felt Corp., Commission Decision #28685-C (1987). The good cause provision also requires the appellant to have acted in a reasonably prudent manner in response to such circumstances as prevented him from filing a timely appeal. Engh v. U.S. Instrument Rentals, et al, Commission Decision #25239-C (1985).

71. Always ask for Special Examiner argument & AE transcript within 14 days of appeal.
If a party wants a copy of the transcript and the documents before the Appeals Examiner, and/or if a party wants to present oral or written argument before the Special Examiner, the party 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. 16 VAC 5-80-30(B) (2).

72. Know who your Special Examiner is and why he/she is there.
If your argument is Monday, you probably have Special Examiner Susan Batte. Tuesday its Lisa Rowley. Wednesday its Tom Killian. Thursday its John Ezell. Others are David Latham

73. The thirty minute Special Examiner argument is worth the 5-10 hour roundtrip to Richmond.

All oral arguments are held in Richmond at 703 East Main Street, and scheduled for one hour. Special Examiner knows the record very thoroughly. Mail & fax a Memorandum in Support of Claimant a business day or two before your oral argument. As Appellant, you argue first and last. As Appellee, you argue in the middle.

74. The standard of review before the Special Examiner is amorphous, at best.
On appeal, the Special Examiner may consider and review the case and affirm, modify, or set aside and vacate the decision of the appeals examiner on the basis of the evidence previously submitted as shown by the record. Code of Virginia 60.2-622(A); 16 VAC 5-80-30(A)(3).

75. If you can live with the facts, then to Circuit Court, and beyond!
Whether an employees behavior constitutes misconduct . . . is a mixed question of law and fact reviewable by this court on appeal. Israel v. Virginia Employment Commission, 7 Va.App. 169, 372 S.E.2d 207 (1988). Whether an employees reasons for leaving work constitutes good cause is a mixed question of law and fact, and reviewable by this Court on appeal. Johnson v. Virginia Employment Commission, 8 Va.App. 441, 382 S.E.2d 476 (1989).

76. Emergency & Extended Unemployment Compensation: 26 + 20 + 14 + 13 + 13 + ???

Virginia State UI available for a maximum of 26 weeks. Tier I federal Emergency Unemployment Compensation (EUC) available for up to 20 more weeks (75% the number of weeks as the claimant received state benefits). Tier II federal EUC available for up to 14 more weeks (50% the number of weeks as the claimant received state benefits). Tier III federal EUC available for up to 13 more weeks (50% the number of weeks as the claimant received state benefits). State-federal Extended Benefits (EB) available for up to 13 more weeks (again, 50% the number of weeks as the claimant received state benefits). Then . . . Total unemployment compensation available in VA is up to 86 weeks. The July 2010 extension legislation did not reinstate the federal additional compensation of an additional $25 per week on all

77. Overpayments: pay them now or pay them later, but you cant waive them.
Any person who has received any sum as benefits under this title to which he was not entitled shall be liable to repay such sum to the Commission. In the event the claimant does not refund the overpayment, the Commission shall deduct from any future benefits such sum payable to him under this title unless overpayment occurred due to administrative error, in which case the Commission shall deduct only fifty percent of the payable amount for any future week of benefits claimed . . . Code of Virginia 60.2-633(A)

Such rights to benefits shall be exempt from levy, execution, attachment, garnishment or any other legal process provided for the collection of debt, even if the compensation is used for purchase of shares in a credit union, or deposited into an account with a financial institution or other organization accepting deposits and is thereby commingled with other funds . . . . Code of Virginia 60.2-600

79. The *: garnishable for child support, federal income tax, food stamp overissuances.

Under the current agreement between the VEC and the Division of Child Support Enforcement, the VEC will withhold $35.00 per week, or 55% of weekly benefits, whichever is less, from weekly unemployment compensation benefits.

80. Use the L word: a remedial program construed liberally to effect beneficent purposes.

Act should be liberally construed to effect its beneficent aims and exemptions should be strictly construed against the employer. Virginia Employment Commission v. A.I.M. Corp., 225 Va. 338, 302 S.E.2d 534 (1983).

And now to see if you were paying attention:

A POP QUIZ Which one of the following people did not appear in this PowerPoint?
(a) Woody Allen (b) Yogi Berra Shatner (c) Harrison Ford Stockdale (d) John Grisham (f) Sarah Palin (g) William (h) James (i) Donald

Answer: John Grisham (His book appeared, but not the author.)
THE END