These comments are submitted on behalf of Central Virginia Legal Aid Society (CVLAS) which provides free civil legal aid to low-income people in Richmond, Petersburg, Charlottesville, and the surrounding cities and counties.  I am currently the CVLAS Director of Litigation located in Richmond, Virginia.  I have been a legal aid attorney since I graduated law school in 1978, and have been practicing in Virginia since 1980, first in Southwest Virginia and in Central Virginia since 2005. 

My comments are based upon my experience over the past 41 years as an attorney representing claimants for unemployment compensation in Virginia.  In the course of that time, I have represented thousands of clients in connection with claims for unemployment compensation in Virginia.  Since May 2022, I have participated in quarterly meetings between top officials at the VEC and legal aid attorneys throughout Virginia who handle unemployment compensation.  Based on those experiences, I have these comments:

(1) Proposed 16 VAC 5-80-10(B) eliminates the possibility of an in-person fact-finding interview with a Claims Deputy, retains the possibility of a telephonic fact-finding interview with a Claims Deputy, but eliminates the requirement that notice of the telephonic fact-finding interview be mailed at least five days in advance.  This requirement should be restored and improved to require that notice of the telephonic fact-finding interview, or the return of a fact-finding statement, be mailed at least 14 days in advance.  Increasingly, Claims Deputies are relying on mailing and seeking return of fact-finding statements to resolve eligibility and qualification disputes, rather than conducting telephonic fact-finding interviews.  Due to the current slowness of the mail, frequently these fact-finding statements arrive only a few days before their return is due, and occasionally arrive after their return is due.  Eliminating the requirement that the VEC mail at least five days in advance will only make this problem worse.  Fourteen days’ advance mailing should be required.

(2) Proposed 16 VAC 5-80-20(B) eliminates the requirement that an in-person First Level Appeals hearing be set for the regional adjudication center most convenient for the party appearing in person, and replaces it with a hearing set for a location administratively convenient for the VEC.  Although budget realities may require this action, the VEC’s ability to make proper, accurate, and complete findings of fact and conclusions of law is significantly lower during a telephone conference call than during an in-person hearing.  At a minimum, the VEC should adopt what other administrative agencies – such as the Social Security Administration, Virginia Housing, and the Department of Social Services - have done to facilitate better decision-making and offer hearings by Zoom or Microsoft Teams.

(3) Proposed 16 VAC 5-80-20(B) retains the requirement that a notice of a First Level Appeals hearing be mailed to the parties at least ten days in advance of the hearing,  As noted supra, due to the current slowness of the mail, frequently these hearing notices arrive only a few days before the hearing, and occasionally arrive after the hearing.   Fourteen days’ advance mailing should be required.

(4) Proposed 16 VAC 5-80-30(B)(3) retains the current requirement that Second Level Appeals be conducted in-person at the administrative office for the agency’s Administrative Law Division in Richmond, Virginia.  Initially, I would observe that the administrative office for the agency’s Administrative Law Division is located in Henrico County, Virginia, so this ought to be changed.  The proposed regulation also allows oral argument by telephone conference call at the VEC’s discretion.  As noted supra, First Level Appeals are scheduled to be by telephone with a possible option for in-person, while Second Level Appeals are scheduled to be in-person with a possible option by telephone.  This is completely backwards.  First Level Appeal hearings involve fact finding where witness observation is crucial to judge credibility.  In almost all cases, Second Level Appeal hearings involve legal arguments where witness observation and judging credibility is not needed.  The current practice since the COVID-19 Pandemic began has been to schedule Second Level Appeals by telephone.  This ought to be retained, with an option for in-person in those rare Second Level Appeal hearings which do involve fact finding.