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 5-60-10(A), 16 VAC 5-60-10(C), and 16 VAC 5-70-10(E), all provide that initial, continued, and/or weekly claims may be filed by telephone, Internet, or by other means at the discretion of the commission.  This change should not be implemented until the Claimant Self-Service System (CSSS) has been configured so all but a tiny minority (less than 1%) of claimants have unfettered access to it.  In our quarterly meetings with the VEC, legal aid has been informed that the “fraud detection” for the CSSS has been set at a level high enough to keep out fraudsters.  Unfortunately, it also keeps out too many legitimate claimants.  At these quarterly meetings, top VEC officials have stated that initially only 20% of claimants could access the CSSS, which slowly increased to 67% as of their last report in September 2022.  This is unacceptably low.  The CSSS should allow 99+ percent of claimants to successfully create an account, create a username & password, and log in.  Unless and until this occurs, filing claims by telephone and other methods should be maintained.

(1) Proposed changes to 16 VAC 5-60-10(A), 16 VAC 5-60-10(C), and 16 VAC 5-70-10(E) provide that initial, continued, and/or weekly claims may be filed by telephone, Internet, or by other means at the discretion of the commission. 

As an initial matter, the multiple references to “or” should be changed to “and” – such that multiple means of claims filing plainly and unambiguously remain available to claimants. 

This is particularly important now in view of the challenges that many people continue to face in attempting to use the Claimant Self-Service System (CSSS).  Many bona fide claimants remain locked out of that system, such that access by telephone and other means remains critically important.

Moreover, over the longer term, and even after CSSS is made accessible widely to claimants, it remains important to keep in mind that many claimants lack technology or training, face other barriers in making initial and continued/weekly benefit claims by Internet (and even by telephone), or need additional assistance. 

The VEC establishing the Office of the Unemployment Compensation Ombudsman, and creating a team of 14 customer advocates located at Virginia Career Works Centers throughout Virginia (as outlined in the VEC’s November 1, 2022 report to the General Assembly), is both a welcome development and an acknowledgment of this need.

Moreover, there is indication that moving away from in-person filing options will impose disproportionate harms on certain populations.  Studies, reflecting on UI modernization, have noted that Black and Latinx adults, and disabled adults, have distinctly lower rates of access to technology and Internet connectivity, and lower rates of digital literacy, than white and non-disabled adults.  https://www.newamerica.org/pit/reports/unpacking-inequities-unemployment-insurance/the-digital-divide-and-ui-modernization-states-moves-to-online-applications-worsen-accessibility (September 17, 2020).  Additionally, roughly 23% of U.S. adults (or 48 million people) struggle to read.  https://www.propublica.org/article/literacy-adult-education-united-states (December 14, 2022).  Online and phone help from the VEC is unlikely to be of use to people who cannot read or write sufficiently to complete applications or appeals, or follow written directions to (for example) provide documents – whether on paper or online.  Lastly, the inability to file and maintain claims in person at local offices may also adversely impact persons with disabilities, depending on the nature of the impairment, which could run afoul of the reasonable accommodation mandate of the ADA and related laws. 

To that end, and in addition to other modes of access (e.g. telephone, Internet), it is important that people be able to file initial and continued/weekly claims at workforce, adjudication, or one-stop centers.  Proposed changes (e.g. to 16 VAC 5-60-10) seemingly eliminating this option should be rescinded.  This is a matter of equitable access for underserved Virginians. 

Moreover, eliminating this option also runs afoul of DOL requirements, as set forth in UIPL 11-18, Change 1, at Attachment I-5.  The document notes that one prerequisite for utilizing UI modernization is that a state must ensure that:

“Alternative Access Options are made available in compliance with ETA guidance, including alternative access options for individuals with barriers to filing by phone or online, such as those with Limited English Proficiency, disabilities, literacy issues (including computer literacy), and computer access issues;”

https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2020/UIPL_11-18_Change_1.pdf (July 16, 2020)

(2) Proposed changes to 16 VAC 5-60-10(E) shorten the so-called “28-day rule” to 21 days.

The purported justification for this (as the agency background document summarizes) is that “to claim benefit rights with respect to a given week, a claimant is required to file the first continued claims form within 28 days of the day the initial claim was filed.  The first claim must be filed within 21 days of the day the initial application was filed.  This change is necessary to align the regulations with USDOL performance requirements but also reflects the actual practice of claimants.”

However, even if the explanation provided is accurate (and it is not clear that it is), the proposed changes have much broader effect than just regarding a first continued claim following the initial claim for benefits.  The proposed changes also block a claimant (in most circumstances) from receiving otherwise-payable weekly benefits, if a subsequent continued claim is filed more than 21 days after the week ending date of the last week claimed. 

Claimants may exceed that time period for any number of reasons, and reducing the filing period from 28 days to 21 days makes the system that much more unforgiving for claimants.

Lastly, and relatedly, 16 VAC 5-60-10(E) retains the problematic requirement that “an additional or reopened claim must be filed in order to initiate any further claim for benefits.”  In practice, as implemented by the VEC, this requirement has meant that a claimant cannot merely file one or more new weekly claims – as to benefit weeks that have not already run afoul of the 28-day deadline – but that a claimant additionally needs to manage to obtain reopening of their claim (e.g. by successfully contacting a VEC representative who is empowered to effectuate that reopening).  This language should be changed, such that a claimant who has exceeded the 28-day rule as to certain benefit weeks is not automatically blocked from filing weekly claims as to subsequent claim weeks, or required to reopen (as an additional step) prior to being able to do so.  This additional step of reopening is seemingly gratuitously, and (while confusing as a general matter) is also especially problematic during time periods when (as in large portions of the last several years) it was very difficult for claimants to promptly reach VEC representatives.      

Proposed changes to 16 VAC 5-60-10(A), 16 VAC 5-60-10(C), and 16 VAC 5-70-10(E) provide that initial, continued, and/or weekly claims may be filed by telephone, Internet, or by other means at the discretion of the commission.

The option to file initial claims at field offices (16 VAC 5-60-10(A)) and to file claims by mail (16 VAC 5-60-10(C) and 16 VAC 5-70-10(E)) must be expressly maintained because: (1) the current telephone and online systems are not reliably accessible; and (2) many claimants require alternate methods of filing due to resource limitations and/or communication needs.

Claimants regularly report problems with the current telephone and online systems. This issue was expressly discussed at the November 9, 2022 meeting of the Commission on Unemployment Compensation - Unemployment Insurance Subcommittee in which Commissioner Roth presented. As of September, the VEC reported that nearly one third of login attempts to the Claimant Self Service Portal were unsuccessful. At the November 9 meeting, the VEC was unable to confirm how many legitimate claimants can access the online systems. The telephone system is also unreliable. The automated phone system was nonfunctional (as reported by a VEC employee) at least one day in the past month. Moreover, as of November, persons requiring assistance faced average hold times that were more than four times as long as the prior spring. (See Agency Reports and VEC Report to Unemployment Insurance Subcommittee.) This is especially problematic when claimants also continue to report issues receiving necessary mailed communications from the VEC (including the pin numbers to access the telephone system). Consequently, the telephone and online systems are not reliable enough to be the sole methods of filing claims.

Moreover, there are many claimants for whom alternate forms of filing are necessary for resource or communication needs. First, some claimants may not have reliable telephone or online access, or the ability provide other documents to the VEC (such as by fax). For example, Broadband Now’s 2021 study reports an estimated 935,208 Virginians without access to broadband.  Filing claims by mail or in person may be the only options for those claimants. Second, the in-person option for initial filing must be expressly maintained to create a safety net for systemic issues with VEC communications and to accommodate individual’s communication needs. As the JLARC report notes, both the VEC online system and mailed VEC communications contain language that is difficult to understand. In recognition of this issue, in 2022 the General Assembly passed legislation requiring that the VEC develop a Resiliency Plan to, in part, address communication issues. (See Va. Code Section 60.2-111 (D).) In furtherance of this requirement, at the November 9 meeting, Commissioner Roth reported that the VEC is undergoing a massive effort to revise all communications into “plain language.” However, this initiative is far from complete. Thus, communications from the VEC may be confusing to most claimants and inadequate for claimants with additional communication needs. While some claimants can seek clarification by phone, as noted, the phone system is unreliable. Further, this option may be insufficient for some claimants’ communication needs. Thus, it is critical to allow for alternative forms of filing.

Consequently, options to file claims at field offices and by mail must be expressly maintained.

While the proposed changes to this section of the Administrative Code appear designed to expedite the claim filing process, the proposed change to 16 VAC 5-60(E) which reduces the timeframe for filing a continued or weekly claim from 28 days to 21 days is a step in the wrong direction. Since the introduction of the Customer Self Service (CSS) portal in November 2021, the Commission has been unable to maintain consistent delivery of the service and has repeatedly taken it down for days or even weeks at a time. Even when overall service has not been interrupted, many individual claimants routinely find themselves unable to access their own CSS accounts due to false-positive anti-fraud measures or other technical issues. While the ability to file continued or weekly claims electronically allows a claimant to file these claims much more quickly and theoretically meet a tighter deadline for filing, the Commission has yet to demonstrate that it can provide reliable, consistent electronic service to claimants. Shortening the deadline a claimant has to file only increases the likelihood that a claimant experiencing technical issues will be denied benefits for no fault of their own. 

These concerns about electronic filing are to say nothing of the many claimants who elect not to use the CSS. Many claimants, whether due to lack of access to the necessary resources, lack of technological proficiency, or personal preference, may file an initial claim and weekly claims for benefits without ever accessing the CSS or receiving electronic correspondence about their claim. Per Commissioner Roth's recent statements in RD874, Report on Electronic Communications and Their Impacts on Virginia Employment Commission Operations, a recent sampling of 16,014 claimants found only approximately 54% indicated a preference to receive communications by email. Accordingly, many claimants receive important documentation or updates about their claim through postal mail, which induces periods of receipt and response much longer than those of electronic communication. Shortening the filing window from 28 to 21 days does a disservice to all claimants who rely on mailed correspondence about their claims. This is especially problematic when considering that many claimants who do not file electronically do so not out of choice but out of financial, educational, or accessibility limitations. 

Furthermore, even if claimants do pursue unemployment benefits strictly through CSS, the Commission's current protocols require all claimants to enter a unique PIN to file for weekly benefits, a number delivered to the claimant via postal mail. The Commission has experienced many issues within recent years where PIN letters were mailed to claimants on a delay or not mailed to claimants whatsoever, even outright suspending the mailing of PIN letters during a period of high filing volume during the COVID-19 pandemic. Given the Commission's own delays and errors in mailing PIN letters and the very real possibility of delayed USPS delivery, shortening a claimant's filing deadline increases the likelihood that their claim may "close" before they have the means to pursue it. 

While the proposed changes to this section of the Administrative Code appear designed to expedite the claim filing process, the proposed change to 16 VAC 5-60(E) which reduces the timeframe for filing a continued or weekly claim from 28 days to 21 days is a step in the wrong direction. Since the introduction of the Customer Self Service (CSS) portal in November 2021, the Commission has been unable to maintain consistent delivery of the service and has repeatedly taken it down for days or even weeks at a time. Even when overall service has not been interrupted, many individual claimants routinely find themselves unable to access their own CSS accounts due to false-positive anti-fraud measures or other technical issues. While the ability to file continued or weekly claims electronically allows a claimant to file these claims much more quickly and theoretically meet a tighter deadline for filing, the Commission has yet to demonstrate that it can provide reliable, consistent electronic service to claimants. Shortening the deadline a claimant has to file only increases the likelihood that a claimant experiencing technical issues will be denied benefits for no fault of their own. 

These concerns about electronic filing are to say nothing of the many claimants who elect not to use the CSS. Many claimants, whether due to lack of access to the necessary resources, lack of technological proficiency, or personal preference, may file an initial claim and weekly claims for benefits without ever accessing the CSS or receiving electronic correspondence about their claim. Per Commissioner Roth's recent statements in RD874, Report on Electronic Communications and Their Impacts on Virginia Employment Commission Operations, a recent sampling of 16,014 claimants found only approximately 54% indicated a preference to receive communications by email. Accordingly, many claimants receive important documentation or updates about their claim through postal mail, which induces periods of receipt and response much longer than those of electronic communication. Shortening the filing window from 28 to 21 days does a disservice to all claimants who rely on mailed correspondence about their claims. This is especially problematic when considering that many claimants who do not file electronically do so not out of choice but out of financial, educational, or accessibility limitations. 

Furthermore, even if claimants do pursue unemployment benefits strictly through CSS, the Commission's current protocols require all claimants to enter a unique PIN to file for weekly benefits, a number delivered to the claimant via postal mail. The Commission has experienced many issues within recent years where PIN letters were mailed to claimants on a delay or not mailed to claimants whatsoever, even outright suspending the mailing of PIN letters during a period of high filing volume during the COVID-19 pandemic. Given the Commission's own delays and errors in mailing PIN letters and the very real possibility of delayed USPS delivery, shortening a claimant's filing deadline increases the likelihood that their claim may "close" before they have the means to pursue it.