COVID-19 and the Historic Failure of the Virginia Employment Commission

By: Tiffany Ngo

The Virginia Employment Commission (“VEC”) was established to provide compensation and benefits to unemployed Virginians in their time of need. Since its establishment, the VEC had been a saving grace to many Virginians, until 2020 when the COVID-19 pandemic hit. Not only did COVID-19 affect Americans hard, the Virginia-governed VEC was the hardest hit1. What was established for Virginians, was no longer for there for them at their time of need.

The VEC was faced with an astronomical number of unemployed Virginians as a result of the pandemic, and as Virginians learned the hard way, the VEC was highly under-equipped to deal with the pandemic’s consequences. The VEC went from being able to process unemployment claims in a timely manner to being completely overwhelmed and understaffed. This meant that not only were Virginians suffering from the fear of COVID-19, Virginians now also had to fear homelessness.

“Virginia’s unemployment insurance program now ranks worst in the country when it comes to quickly processing claims that require staff review – a backlog that has risen to more than 90,000 cases…[a]pplicants caught in the bureaucratic limbo have been left waiting as long as five months for the state to decide whether their claims are valid and to begin issuing payments. And at the current rate, U.S. Department of Labor data shows it could easily take more than a year for an applicant to exhaust the appeals process.”2 Fortunately, not all hope is lost. Due to the astronomical number of Virginians affected, various legal aid organizations have partnered up with pro bono firms to take a stand against the VEC and stand up for the rights of Virginians.

These organizations filed a class action lawsuit charging the VEC for “violating the rights of Virginians who have been cut off benefits without process, or who face long delays in getting hearings to seek desperately needed benefits.”3 At the onset of the pandemic, the VEC was able to process over 1.6 million unemployment claims and distribute over $13.1 billion in benefits to the 1.3 million Virginians.4 However, the sudden implementation of three brand new federal pandemic-related benefit programs set them off track, and since then, they have rapidly declined.5 As of May 10, 2021, there were over 70,000 unpaid claims for the traditional unemployment benefits.6

The lawsuit sought to address the number of claims awaiting adjudication for traditional unemployment benefits. The lawsuit, heard by Judge Henry Hudson of the Eastern District of Virginia, filed on May 25, 2021, ordered the VEC to

[A]ddress the claims of additional claimants who have contacted Plaintiffs’ Advocates prior to May 21, 2021 and whose claims require resolution by the VEC. Plaintiffs’ Advocates shall send to the VEC a list containing the name, address, claim number (if known), and any summary of issue provided for additional consumers, who directly contact Plaintiff’s Advocates and who authorize and direct such assistance. The VEC shall review and resolve those issues on an expedited basis and provide an update to Plaintiff’s Advocates within twenty-eight (28) days of receiving the list from Plaintiffs’ Advocates, or as soon as administratively feasible.7

To comply with the Order, the VEC has hired hundreds of staff to process and adjudicate claims and the numbers are getting better, but to date, over 100,000 Virginians are still affected, with an unemployment rate of 4.1%, and the numbers are still climbing. Those who haven’t been affected before are now being affected.8

Although I commend the VEC for their attempt to resolve their enormous backlog in a timely manner and their compliance with the Order, they aren’t moving quick enough. Unemployed Virginians are still waiting months and even over a year to get the benefits they’re entitled to and the problem with VEC seems to be never ending. Luckily, the legal aid organizations and pro bono partners are continuing to monitor the status of VEC’s actions regarding compliance with the Order and helping navigate unemployed Virginians through the uncharted waters of COVID-19. They have been sending names of claimants who contact them over to the VEC weekly for expedited claims processing and have so far been successful in helping many receive their benefits, although there are many still without benefits. However, I have full confidence that slowly, but surely they will ensure all unemployed Virginians receive the benefits they rightly deserve and that they will continue to monitor the VEC’s progress until the number of unemployed Virginians not receiving benefits hits zero.

1 Fix VA’s Unemployment Insurance System, Legal Aid Justice Center, https://www.justice4all.org/ui/

2 Ned Oliver, Virginia Ranks Worst in Nation for Quickly Reviewing Some Unemployment Claims, Virginia Mercury (Oct. 30, 2020, 12:05 A.M.), https://www.virginiamercury.com/2020/10/30/virginia-ranks-worst-in-nation-for-quickly-reviewing-unemployment-claims/

3 Jeff Jones, Class Action Lawsuit – VA Unemployment Insurance, Legal Aid Justice Center (April 15, 2021), https://www.justice4all.org/2021/04/15/class-action-lawsuit-va-unemployment-insurance/.

4 Cox v. Hess, No. 3:21-cv-00253-HEH, slip op. at 9 (E.D.Va. May 25, 2021).

5 Id.

6 Id.

7 Id.

8 See Virginia Employment Commission, Estimated Labor Force Components, (July 2021), https://www.vec.virginia.gov/sites/default/files/news-13480-07-2021%20Pre%20%26%2006-2021%20Rev%20%20–%20%20Estimated%20Labor%20Force%20Components.pdf.

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