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.

(1) Proposed changes to 16 VAC 5-80-10(B) retain the possibility of a telephonic fact-finding interview with a claims deputy, but eliminate 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 be mailed at least 14 days in advance. 

Increasingly, however, claims deputies use written fact-finding statement forms (which typically are mailed to the parties for them to fill out) 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.  This is hugely problematic.  Eliminating the requirement that the VEC mail at least five days in advance will only make this problem worse.  Instead, at least fourteen days’ advance mailing – and, better, 30 days’ advance mailing – should be required.

(2) Proposed changes to 16 VAC 5-80-20(B) eliminate 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 language providing that the hearing be set for a location administratively convenient for the VEC.  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 (where, e.g., the parties cannot be observed, and there may be greater challenges with confronting witnesses with documents in the record) than during an in-person hearing.  Moreover, this effectively reduces access for parties who wish to appear in person – with disproportionate effects on underserved Virginians who may not be able to participate successfully (or as successfully) via phone.  At a minimum, in addition to in-person hearings at VEC-designated locations, the VEC also 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, by offering hearings by Zoom or Microsoft Teams.  However, the VEC should make in-person hearings available at locations across the state.

(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 above, 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.   For that reason, at least fourteen days’ advance mailing – and, better, 30 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.  The proposed regulation also allows oral argument by telephone conference call at the VEC’s discretion. 

This should be changed, such that the parties are given a choice between appearing in-person or by telephone, as with First Level Appeals hearings.

1. Proposed 16 VAC 5-80-10(B) removes the requirement that notice of a fact-finding proceeding be mailed five days before the scheduled proceeding. Requirements for advance mailings by the VEC must (at minimum) be maintained, particularly due to the USPS’s recent increase in the days for each service delivery standard. Moreover, even with recent improvements in delivery speed, nearly ten percent of all first class mail is not delivered on time.  Thus, given the aforementioned changes to the USPS service standard and untimely rate, notice should be mailed 14 days prior to the fact-finding proceeding.
2. Proposed 16 VA 5-80-20 (B)(1) 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. This may prevent claimants from taking part in in-person hearings. Telephonic hearings reduce the appeals examiner’s ability to make complete findings of fact and law. Further, while the option of remote hearings (such as by Zoom or Microsoft Teams) should be added, this alone will not remediate the adverse effect of the proposed change as more than 900,000 Virginians lack broadband access.
3. 16 VAC 5-80-20(B)(4) provides that notice of hearing be mailed to all parties at least 10 days advance of the hearing. Given the aforementioned changes to the USPS service standard and the rate of deliveries beyond the standard, notice should be given at least 30 days advance of the hearing.
4. Proposed 16 VAC 5-80-30 (B)(3) limits the availability of telephonic hearings for second level appeals to VEC discretion. Parties should have the choice between telephonic and in person hearings.