Virginia Employment Commission Hit with Class Action Over State’s Alleged Failure to Timely Provide Unemployment Benefits

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A proposed class action aims to secure declaratory and injunctive relief over the Commonwealth of Virginia’s alleged “gross failures” in providing “tens of thousands” of state residents with unemployment benefits, and likewise determining others’ eligibility for benefits, within the timeframe mandated by law. 

The 30-page lawsuit, which names as a defendant in her official capacity Virginia Employment Commission (VEC) head Ellen Marie Hess, says data collected by the U.S. Department of Labor shows that Virginia ranks 53rd out of 53 jurisdictions in determining certain basic unemployment eligibility issues, “with only 2% of cases decided in a timely manner.” 

According to the complaint, Virginia’s unemployment system has “failed completely” for scores of residents whose claims have either “languished for months without any decisions made on their claims” or, “if they were lucky enough to begin receiving benefits, their benefits have been suddenly cut off without notice or explanation.” Disproportionately harmed by the VEC’s alleged failures in properly handling unemployment claims are Black Virginians, the lawsuit stresses.

Compounding matters are what the five plaintiffs allege to be “unconscionable bureaucratic failures” that have not only blocked access to regular state unemployment benefits but “[s]ignificant federal aid,” including additional federal payments of up to $600 per week that have been blocked given they’re also paid through Virginia’s unemployment system. Overhanging the apparent issues with unemployment benefits in Virginia is the COVID-19 pandemic, a crisis that the suit says state residents have experienced resistance from the VEC in weathering. 

“All of this is occurring in the context of massive Federal funding and mandates to address the ongoing COVID-19 economic crisis through expanded and extended unemployment benefits,” the case reads. “The Commonwealth’s refusal to construct a process to ensure that these benefits promptly get to those who need them denies Virginians the promise of these federal commitments.” 

The U.S. Department of Labor tracks the performance of state unemployment agencies by way of several “core measures” considered to be critical indicators of the overall performance of a state’s program, the suit says. If acceptable levels of performance with respect to those core measures are not met, it signals “fundamental impairment in program operations,” and triggers “corrective action planning,” according to the case.

Virginia’s performance with regard to the core measurement dubbed “Non-Monetary Determination Time Lapse,” which the DOL uses to establish a performance standard for state unemployment systems requiring at least 80 percent of non-monetary decisions to be made within 21 days of the date the issue is detected, is effectively abysmal, the lawsuit relays: 

“News reports indicate that as many as 90,000 people have filed initial claims with VEC and are stuck in a limbo status: they have not received benefit payments, they have not received information about their benefit claims, and they have not even received a deputy determination denying benefits (which they could appeal).” 

The plaintiffs propose to represent a class of Virginians who applied for unemployment benefits in August, October and November 2020 and, as of the date of the complaint’s filing, have “neither received benefits nor been advised that their claims have been denied.” According to the case, thousands of other Virginia residents are “in a similar limbo status—denied access to the benefits they deserve and desperately need and denied a formal determination that would allow an appeal.” 

Also proposed for representation by the plaintiffs is a class of Virginians who are alleged to have begun receiving unemployment benefits in March and April 2020 only to have their benefits stop later without explanation. Per the suit, there are “thousands in a similar posture.” 

The suit claims Virginia’s shortcomings with regard to timely doling out unemployment benefits amount to violations of proposed class members’ due process rights under the Fourteenth Amendment of the U.S. Constitution, the Social Security Act and state law governing unemployment benefits.

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