The Virginia Employment Commission’s stated purpose for removing their Guide for Effective Unemployment Insurance Adjudication (henceforth “Guide”) is that the document does “not meet the definition of a guidance document as [it is] concerning internal agency procedures.” As I detail below, this explanation misconstrues both the statutory definition of “guidance document” and the nature of the Guide itself. Removal of this Guide is inconsistent with the Virginia Code and will have an adverse impact on claimants, employers, and their advocates. It will also result in reduced regulatory transparency in contradiction of the spirit of the Governor’s Executive Order 19. Thus, I strongly oppose this action, and instead encourage the VEC to review the Guide to ensure it is “accurate and up-to-date” as is required under the Regulatory Reduction Guide.

Agencies are required to file guidance documents with the Registrar under Virginia Code § 2.2.-4103.1 (B).  A guidance document is defined in Virginia Code § 2.2-4101 as “any document developed by a state agency or staff that provides information or guidance of general applicability to the staff or public to interpret or implement statutes or the agency’s rules or regulations, excluding agency minutes or documents that pertain only to the internal management of agencies.” Thus, if the Guide is a “guidance document,” then the Virginia Employment Commission (VEC) is statutorily obligated to file it with the Registrar.

The Guide meets the statutory definition of a guidance document. As noted above, the affirmative requirements of a guidance document are that it provides information “of general applicability to the staff or public to interpret or implement statutes or agency’s rules or regulations.” This can be broken down into two elements. The document must (1) provide information on the interpretation or implementation of statutes, rules, and regulations, and (2) this information must be of general applicability to agency staff or the public.

The Guide details a purpose consistent with both elements. The first element requires information regarding interpretation and implementation of statutes, rules, and regulations. Merriam Webster defines the term “interpret” as “to explain or tell the meaning of: present in understandable terms.” Implement means to “to give practical effect to and ensure actual fulfillment of by concrete measures.” Thus, under the Virginia Code, a guidance document would explain the law in understandable terms and explain how the law was given practical effect. The Guide purports to do just that. The Forward (page i) states, “The Guide for Effective Unemployment Insurance Adjudication in Virginia is a synthesis of the basic legal principles followed by adjudicators and judges in resolving issues that arise under the Virginia Unemployment Compensation Act, Title 60.2. [. . . .]  Although it does not purport to cover every contingency, it does summarize the fundamental considerations and is designed to make the task of researching the law easier for adjudicators.” By summarizing fundamental considerations and synthesizing the law, the Guide is more than a recitation of the Virginia code; it presents Virginia’s unemployment law in understandable terms. Moreover, the Preface (ii) to the Guide further states, “The purpose of this Guide is to familiarize the reader with the principles of unemployment insurance law in Virginia, including statutes, regulations, Commission decisions, and rulings of the Courts.” By detailing not merely laws, rules, and regulations, but how the Commission and courts have given the law practical effect (and how adjudicators should do so), the Guide provides information about both interpretation of the law and implementation of the law.

The Guide also details a purpose consistent with the second affirmative element, which is to provide this information of general applicability to either staff or the public.  In fact, the Guide provides information to both staff and the public. In the Forward (page i) the Guide states “Its dual aims are to provide training for new Agency adjudicators and a reference for veteran adjudicators. [. . . .] Interested parties and their representatives, as well as the general public, will also find the Guide a useful tool in gaining a better understanding of unemployment law in Virginia.” Consistent with this understanding that the public would benefit from the Guide, the VEC has published the Guide on its website since April 14, 2010 per archive.org records. Thus, the Guide meets both affirmative elements of the statutory definition of guidance documents by providing information to VEC staff and the public about interpretation and implementation of unemployment law.

Contrary to the VEC’s assertion, the Guide does not meet the exclusionary element of the definition of guidance documents. Virginia Code § 2.2-4101 expressly excludes “agency minutes or documents that pertain only to the internal management of agencies” from the definition of guidance documents. The Guide is not composed of agency minutes, and it does not pertain to the internal management of the VEC. By its own terms, the Guide “familiarize[s] the reader with the principles of unemployment insurance law.” Thus, the Guide is a guidance document and the VEC must file it with the Registrar. Deleting the Guide would be inconsistent with state law.

Deleting the Guide would also have adverse consequences for claimants and employers, and their advocates. Unemployment law is complex, as is made apparent by the fact that the Guide (which is 150 pages) states on page ii that it is “to serve as a convenient reference tool to facilitate research.  It is by no means all encompassing.” If even veteran VEC adjudicators need the Guide, then imagine trying to understand unemployment law as a claimant or employer. Many unemployment insurance claimants and small businesses may only have a single experience with Virginia’s unemployment insurance system. Workers enduring job loss and small business owners navigating the unemployment insurance system during economic struggles have greatly benefited from the availability of the Guide. With even the word “unemployment” being a legal term of art with a legal definition quite different than its ordinary meaning, the Guide has been a critical tool in ensuring that claimant and employer’s rights are fully understood and realized.

Assurances by VEC that “Moving forward, [this document] can still be found on the VEC website for your review” (email from Ashley Ervin, 6/13/24 4:04PM) do not remedy the potential harm to claimants and employers, and certainly do not bring the proposed regulatory action into compliance with state law. The VEC cited the Governor’s Executive Order 19 as one reason for the proposed deletion of the Guide (email from Ashley Ervin, 6/13/24 4:04PM). While Executive Order 19 seeks a 25% reduction in regulations, it also seeks “the increased transparency of all state executive branch regulations.” Consistent with this goal, the Office of Regulatory Management’s April 2023 Regulatory Reduction Guide: A Guide for Achieving the 25% Regulatory Reduction under the Executive Order 19, states that agencies should “ensure that [guidance documents] are accurate and up-to-date. Allowing guidance documents to become stale or failing to rescind inaccurate or irrelevant guidance can create significant confusion for the regulated community and the general public.” The VEC did not respond to my June 14, 2024 email asking if updates to the Guide would also be published to the website. The Guide was last updated in 2010. Thus, beyond the fact that publishing the Guide on the VEC website has no bearing on compliance with state law regarding guidance documents, failing to update the Guide is inconsistent with the Governor’s Executive Order 19.

In conclusion, the Guide for Effective Unemployment Insurance Adjudication is a guidance document under state law, as it provides information for staff and the general public on interpretation and implementation of state law, rules, and regulations. The VEC is statutorily required to file the Guide with the Registrar annually. The proposed deletion of the Guide is inconsistent with state law, harmful to claimants and employers, and contrary to the spirit of Executive Order 19.