Title of Regulation: 16VAC5-80. Adjudication (amending 16VAC5-80-10 through 16VAC5-80-40).

Statutory Authority: §§ 60.2-111 and 60.2-623 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: January 4, 2023.

Effective Date: January 19, 2023.

Agency Contact: Jacob Shuford, Regulatory Coordinator, Virginia Employment Commission, 6606 West Broad Street, Henrico, VA 23230, telephone (804) 486-2360, FAX (804) 786-9034, or email jacob.shuford@vec.virginia.gov.

Basis: Statutory authority for the Virginia Employment Commission to promulgate such regulatory action is derived from §§ 60.2-113, 60.2-611, and 60.2-612 of the Code of Virginia, which authorize the commission to adopt, amend, or repeal regulations as necessary, including methods of procedure and changes in procedure in handling interstate claims.

Purpose: The commission must take all necessary steps to aid employment stabilization in the Commonwealth of Virginia under its duty to administer the Virginia Unemployment Compensation Act (§ 60.2-100 et seq. of the Code of Virginia) for the welfare of the citizens of the Commonwealth through unemployment benefits, labor exchange system, job services programs, and solvency of the administered trust fund. Adapting to the shift away from brick and mortar local offices through an increased utilization of technology and stream lining of claim filing processes are necessary to gain efficiency in the pursuit of those mandated goals.

Rationale for Using Fast-Track Rulemaking Process: This action is noncontroversial because the proposed changes are intended to conform the regulation to current practice and the primary benefits of the proposed changes would be to update the regulation to provide accurate information regarding Virginia's regulatory requirements with respect to the appeals process for unemployment claims determinations.

Substance: Amendments (i) update the deputy's determinations or decisions; (ii) clarify methods for gathering information to determine benefit eligibility or qualification and mailing requirements; (iii) update language to conform to statute; (iv) adjust hearing requirements; (v) update the appeals process; (vi) adjust hearings and allow parties to submit affidavits in lieu of a personal appearance at hearings scheduled for additional evidence issues, such as reopening of an appeals examiner's hearing or timeliness of an appeal to the Office of Commission Appeals; and (vii) update forms required by the regulation.

Issues: The primary advantage to the public is more clarity to the flow of information in the modernized processes, practices, and procedures used by the agency. There are no disadvantages to the public. The Commonwealth will benefit by ensuring processes, practices, and procedures are accurately represented in the regulations. There are no disadvantages to the agency.

Department of Planning and Budget's Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia (Code) and Executive Order 14 (as amended, July 16, 2018). The analysis presented represents DPB's best estimate of these economic impacts.¹

Summary of the Proposed Amendments to Regulation. The Virginia Employment Commission (VEC) seeks to make a number of discretionary changes to 16VAC5-80, Adjudication, that would conform the regulation to current practice.

Background. VEC proposes to update the regulation to reflect how appeals for unemployment benefit decisions are currently handled. VEC reports that some of the proposed changes have been phased in over time while many took place with the implementation of the new online system, Virginia Unemployment Information System in late 2021.² Although the regulation was last updated in 2002, VEC reports that individuals filing unemployment insurance claims could access information on the current policies and requirements via the VEC website.³ As a matter of practical use for both employers and claimants, the information provided on the VEC website contains greater detail than the regulation. Rather than add all of these details to the regulation, the proposed amendments would mainly update outdated and incorrect information, clarify ambiguous language, and update the list of forms at the end of the chapter.

In addition, the 2014 federal Workforce Innovation and Opportunity Act required significant changes to VEC operations and service delivery. VEC reports that these changes included closing VEC local offices and offering services through "One-Stop" service centers operated with mandated partners and local Workforce Development Boards.⁴ As a result, references to local offices are obsolete, meetings have been replaced with telephone calls in various instances, and appeals are further streamlined within the Commission's Administrative Law Division between the Office of First Level Appeals and the Office of Commission Appeals. The proposed amendments would also update the regulation to reflect these administrative changes.

The most substantive changes are as follows:

16VAC5-80-10 Deputy's determinations or decisions would be amended to reflect that predetermination fact-finding proceedings may be conducted with a deputy when it is "deemed necessary by the commission in order to resolve an outstanding issue on a claim," whereas the current language states that such proceedings may be conducted "whenever a request is made by the claimant, his liable employer, or his interested subsequent employing unit, for the purpose of gathering information to determine benefit eligibility or qualification." The option to conduct the proceeding in person would be removed, so that the only remaining option would be to conduct the proceeding telephonically.

In general, changes are proposed to reflect the flow of information in new, modernized systems and better align with regulations of the United States Department of Labor (USDOL). VEC states that the USDOL, "has set Core Measures" for Unemployment Insurance Program Performance. To the best of [our] knowledge, these Core Measures are not enforced with penalties, however, the Agency seeks to adhere to DOL best practices whenever possible."⁵

16VAC5-80-20 First level appeals would be updated throughout such that "the Administrative Law Division" would be replaced with "the Administrative Law Division's Office of First Level Appeals." The information to be provided on a written appeal would be updated to match the information currently required on the appeal form (name and last four digits of the claimant's social security number). In-person or split meetings, which would have been scheduled at the "regional adjudication center most convenient for the party who will be appearing in person" (or at VEC's discretion) at any other convenient location" under the current language would now be scheduled "at a location administratively feasible for the commission" under the proposed language.

VEC has clarified that the Administrative Law Division no longer has funds to schedule an in person hearing "at any other convenient location, provided the alternate location does not cause undue hardship or unreasonable travelling expenses to the party participating in person."⁶ VEC specifically reported that, "Our current organizational concept, budget realities and growing reliance on telephonic hearings and our centralized adjudication center dictates this change."

16VAC5-80-30 Commission review would be updated throughout such that "the Administrative Law Division" would be replaced with "the Administrative Law Division's Office of Commission Appeals." Under the current language the commission may permit oral arguments via telephone conference call "upon the consent of all interested parties;" the proposed language would only allow this at the commission's discretion. VEC also proposes to add that "Parties may submit affidavits in lieu of personal appearance at hearings scheduled for additional evidence issues such as reopening of an appeals examiner's hearing or timeliness of an appeal to the Office of Commission Appeals."

16VAC5-80-40 Oaths, subpoenas, ex parte communications, and approval of attorney's fees, the word "field" would be removed from "field tax representatives" to reflect the closure of field offices.

Estimated Benefits and Costs. Since the proposed changes are intended to conform the regulation to current practice, the primary benefits of the proposed changes would be to update the regulation to provide accurate information regarding Virginia's regulatory requirements with respect to the appeals process for unemployment claims determinations.

A number of proposed changes would grant greater discretion to VEC regarding whether to schedule predetermination screening proceedings, the location of in-person hearings, and whether hearings are conducted in-person or via telephone conference calls. These changes may make the appeals process less flexible for claimants or employers, and inconvenience those who may previously have requested an in-person meeting at the local field office closest to them. However, such impact would not result from the regulatory changes proposed here but rather the effort that have already been implemented to streamline VEC's operations and service delivery and make it more efficient. Lastly, these broader efforts to streamline VEC service delivery and make it more efficient may benefit claimants and employers to the extent that it allows for faster resolution of appeals.

Businesses and Other Entities Affected. The proposed amendments affect individuals or their employers who seek to appeal a decision or determination in an unemployment insurance claim, including those seeking to escalate a first level appeal to a commission appeal.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁷ An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. As noted, the proposed changes may reduce flexibility for some claimants and employers, but are part of a broader process change that likely benefits claimants and employers to the extent that it allows for greater efficiency in appeals resolution. Thus, an adverse impact is not indicated.

Small Businesses⁸ Affected.⁹ The proposed amendments do not affect requirements for small businesses that are involved in an unemployment insurance claim. Thus they would not adversely affect small businesses.

Localities¹⁰ Affected.¹¹ The proposed amendments would not affect any locality in particular or create new costs for any local government. Consequently, an adverse economic impact is not indicated for localities.

Projected Impact on Employment. The proposed amendments do not appear to affect total employment. The closure of local field offices may have reduced employment; however, those changes have been implemented as part of a broader modernizing process and would not result from the changes proposed.

Effects on the Use and Value of Private Property. The proposed changes do not create new costs for businesses and thus would not affect the value of private property. The proposed amendments do not affect real estate development costs.

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¹Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

²See https://www.vec.virginia.gov/node/13530.

³See https://www.vec.virginia.gov/appeals, https://www.vec.virginia.gov/unemployed/Claimant-Handbook/Appeal-Rights, and https://www.vec.virginia.gov/unemployed/appeals/faq.

⁴See https://www.dol.gov/agencies/eta/wioa for information on the Workforce Innovation and Opportunity Act.

⁵VEC email dated June 23, 2022. The USDOL standards can be found here: Core_Measures.pdf (doleta.gov)

⁶VEC email dated June 28, 2022.

⁷Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁸Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁹ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

¹⁰"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

¹¹Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The agency has reviewed the economic impact analysis prepared by the Department of Planning and Budget and concurs with this analysis.

Summary:

The amendments (i) update claim filing processes as the agency increasingly moves away from local offices and into a modernized claim filing process; (ii) reflect operational structure changes for increased efficiency, such as altering the continued and weekly claim filing deadline; and (iii) update forms required by the regulation.

16VAC5-80-10. Deputy's determinations or decisions.

A. Whenever, after a claim is filed, a deputy obtains information from a claimant, employer, or third party which that could affect the claimant's entitlement to benefits, he the deputy shall initiate further investigation. The deputy may contact the parties in person or by telephone to obtain information. Documentary evidence prepared specifically for the claim or for other purposes may be considered by the deputy. Any party to an investigation may be represented by counsel or a duly authorized representative. No information or evidence shall be considered by the deputy unless the claimant has been given the opportunity to see or hear it and comment upon it. Information concerning eligibility or qualification for benefits shall be entered into commission records.

B. A predetermination fact-finding proceeding may be scheduled by the conducted with a deputy whenever a request is made by the claimant, his liable employer, or his interested subsequent employing unit, for the purpose of gathering information to determine benefit eligibility or qualification. Notice of the date, time and location will be mailed to the parties five days before the scheduled proceeding, but such notice may be waived with the parties' consent when deemed necessary by the commission in order to resolve an outstanding issue on a claim.

The proceeding may be conducted telephonically or in person with the deputy presiding. This informal interview shall not be recorded in any way, although notes can be taken by the deputy. Statements made by parties or witnesses shall not be taken under oath and formal examination or cross-examination shall not be permitted. The deputy shall direct questions to the parties and witnesses. The parties may also ask questions of each other and the witnesses. Rebuttal to statements made by opposing parties or witnesses shall be permitted. Any party to a predetermination proceeding may be represented by counsel or other duly authorized agent. The record of facts of the proceeding shall become a part of the commission's records.

C. As soon as possible following the acquisition of facts necessary to make a determination or decision, either from the parties' submissions or from a predetermination proceeding, the deputy shall render a determination or decision in writing which shall include the effective date of any qualification or disqualification, the dates of any eligibility or ineligibility, the law or regulation upon which the determination or decision is based, and the reasons for the determination or decision, together with information concerning the filing of an appeal. This determination or decision shall be promptly delivered or mailed to the parties at their last known addresses or designated point of contact.

16VAC5-80-20. First level appeals.

A. The claimant, his the claimant's liable employer, or any subsequent employing unit with a direct interest in an issue may appeal from an adverse deputy's determination or decision as specified in § 60.2-619 of the Code of Virginia.

1. Appeals shall be filed with the commission's Administrative Law Division Division's Office of First Level Appeals in one of the following ways:

a. In person at any agency service location, including field offices workforce, regional adjudication centers, or one-stop centers, or the commission's administrative office in Richmond, Virginia;

b. By mail to the Administrative Law Division Division's Office of First Level Appeals at the address specified on the deputy's determination or decision;

c. By facsimile transmission to the Administrative Law Division Division's Office of First Level Appeals at the facsimile number specified on the deputy's determination or decision; or

d. By the Internet at a site or address specified by the commission.

2. Appeals shall be presumed to be filed on the date of receipt by the commission. An appeal mailed to the commission shall be presumed to be filed on the date of postmark by the United States Postal Service. If no postmark appears on the envelope, the appeal shall be presumed to be filed on the date it was received by the commission.

3. Appeals shall be in writing and should set forth the grounds upon which they are sought, as well as the name and last four digits of the social security account number of the claimant; however, any document in writing submitted to the commission by a party or his a party's authorized representative expressing a desire to appeal shall be sufficient to initiate an appeal. Agency personnel shall furnish an appellant or his an appellant's authorized representative whatever assistance is necessary to file an appeal. The appeal should be signed by the appealing party or that party's authorized representative; however, the absence of a signature shall not result in the dismissal of the appeal.

B. After the filing of an appeal, the record in connection with the claim, together with the notice of appeal, shall be assigned to an appeal tribunal consisting of a salaried examiner only. Should evidence indicate that the appeal was not filed within the time prescribed by law, the first issue to be considered at the hearing shall be whether the appeal was timely filed or whether there exists good cause for extending the appeal period.

1. Except as otherwise provided herein in this chapter, all hearings shall be conducted by telephone conference call. At the discretion of the commission, a split hearing or an in-person hearing may be scheduled if the complexity of the case or the quality of telephone service in a particular locality makes participation in the hearing unreasonably difficult. A split or in-person hearing will be scheduled if a party does not have reasonable access to a telephone that would permit meaningful participation in a telephonic hearing. In assessing the complexity of a particular case, the commission shall consider the number of witnesses involved, the number and length of any documents that will likely be proposed as exhibits, whether one or both parties are represented, whether an interpreter is required, and any other relevant factors. In-person or split hearings shall be scheduled for the regional adjudication center that is most convenient for the party who will be appearing in person. At the discretion of the commission, an in-person or split hearing may also be scheduled at any other convenient location, provided that the alternate location does not cause undue hardship or unreasonable travelling expenses to the party participating in person at a location administratively feasible for the commission.

2. Any party who desires to appear in person for the hearing shall be permitted to do so provided a timely request is received by the commission. A request shall be deemed timely if it is received by the commission before the scheduled hearing convenes. If a request to appear in person is received after the hearing has been convened, the presiding appeals examiner may grant or deny the request based upon consideration of all relevant circumstances. A request by a party to appear in person shall not require any other party to also appear in person; however, any other parties to the proceeding should be promptly informed of the request for in-person participation and be given the opportunity to participate in person if the commission grants a party's in person hearing request.

3. A hearing that is postponed or continued to accommodate a request for in-person participation shall be rescheduled as soon as administratively feasible.

4. A notice of hearing shall be mailed to all parties and their known authorized representatives at least 10 days in advance of the hearing. The hearing notice shall set forth the particular statutory provisions and regulations that must be considered to resolve the case. The appeals examiner may consider any other applicable issues which that are raised or become evident during the course of the hearing provided that all parties in interest are present and all agree on the record to waive the 10-day notice requirement with respect to such new issue. The appeals examiner may refer a new issue to the deputy if it has not been ruled upon at that level and may, upon his the appeals examiner's own motion, postpone or continue the case if a new issue has become evident and it is necessary to give proper written notice in order to proceed.

C. The Office of First Level Appeals (First Level Appeals) shall endeavor to schedule hearings as soon as possible in the order in which appeals are received. Special requests regarding dates or times of hearings will be given consideration; however, they need not always be honored. Requests for postponement of scheduled hearings shall be granted only when a party or his the party's authorized representative demonstrates good cause for an inability to appear at the scheduled date and time. Good cause shall be deemed to exist if a likelihood of material and substantial harm is shown. Postponements may be granted only by the Chief Appeals Examiner or the Chief Appeals Examiner's designee, the Clerk of the Commission's Commission for First Level Appeals, the examiner assigned to hear the case, or an appeals examiner acting in charge of the Office of First Level Appeals, although they may be communicated to the parties by other authorized persons. A postponed hearing may be rescheduled without notice if all parties in interest agree. Otherwise, notice of a postponed hearing shall be given as if it were a new hearing.

D. Once a hearing has commenced, it may be continued only by the presiding appeals examiner, either upon his the presiding appeals examiner's own motion or that of a party. Continuances may be granted in situations where: (i) there is insufficient time to properly hear the evidence; or (ii) unexpected or unavoidable circumstances arise during the course of a hearing which that require a continuance in order to protect the substantive or procedural rights of the parties.

A continued hearing may be rescheduled by the presiding appeals examiner without written notice if all parties in interest are present and all concur. Otherwise, notice of a continued hearing shall be given as if it were a new hearing.

E. If the appellant wishes to withdraw his the appeal, a request, together with the reasons therefor, must be made in writing and sent to the Clerk of the Commission's Commission of First Level Appeals at the commission's administrative office in Richmond, Virginia. The request will be granted only if the Chief Appeals Examiner, the Chief Appeals Examiner's designee, or the appeals examiner assigned to hear the case is satisfied that:

1. The appellant understands the effect that withdrawal will have upon benefit entitlement, potential benefit charges, and potential overpayment;

2. The request is not the result of any coercion, collusion, or illegal waiver of benefits prohibited under § 60.2-107 of the Code of Virginia; and

3. The appealed determination is not clearly erroneous based upon the existing record.

Once granted, a withdrawal cannot be rescinded unless an evidentiary hearing on the issue of rescission is held before an appeals examiner, and the former appellant demonstrates that the criteria required for withdrawal were not fully met. A request to rescind a withdrawal must be filed with the commission within 30 days from the issuance of the Order of Dismissal or the discovery of information that would establish that withdrawal criteria were not met.

F. In any hearing before an appeals examiner, all testimony shall be taken under oath or affirmation and a record of the proceedings shall be made by the presiding appeals examiner who shall inform all parties of this fact. No other recording of the proceedings other than that specifically authorized by the Virginia Unemployment Compensation Act (§ 60.2-100 et seq. of the Code of Virginia) shall be permitted.

The appeals examiner shall conduct the hearing in such a manner as to ascertain the substantive rights of the parties without having to be bound by common law, statutory rules of evidence, or technical rules of procedure. In addition to testimony, the appeals examiner may accept relevant documents or other evidence into the record as exhibits, upon the motion of a party.

1. Where a party is unrepresented, the appeals examiner shall assist that party in presenting his case and testing the case of the opposing party.

2. At any hearing before an appeals examiner, an interested party may appear in person, by counsel, or by an authorized representative. All such persons will be permitted to attend the entire hearing.

3. An employer shall be permitted one representative, in addition to counsel or duly authorized agent, who may attend the entire proceeding. The appeals examiner shall exclude any other witnesses from the hearing until such time as their testimony is to be taken. Observers may be permitted to attend the hearing so long as there is no objection by a party.

4. The appeals examiner shall control the order of proof, rule upon the admission of evidence, and may examine and cross-examine witnesses. The examiner shall have the authority to maintain order and eject disruptive or unruly individuals. At a hearing, the parties, counsel, or duly authorized representatives shall be given an opportunity to cross-examine witnesses, to inspect documents, and to offer evidence in explanation and rebuttal. On motion of the appeals examiner, or any party, documents already in a claimant's file or obtained during the course of a hearing may be admitted into the record as exhibits provided they are relevant to the issues in dispute. Before the hearing is closed, the parties shall be given an opportunity to present oral argument on all the issues of law and fact to be decided. In addition, the appeals examiner may permit the parties to submit written arguments.

G. The decision of the appeals examiner shall be reduced to writing and shall state the issues, findings of fact, opinion or reasons for the decision, and final judgement of the examiner. A copy of the decision shall be mailed to each of the interested parties and their known representatives who have requested to be notified of the decision. If the decision is rendered by an appeals examiner other than the one who presided at the hearing, that examiner shall review the record of the hearing and so state in the decision.

H. If any party believes that the appeals examiner exhibits bias towards toward one or more parties in a case, a challenge to the interest of such appeals examiner shall be made promptly after the discovery of facts on which such challenge is based, but not later than the date on which the decision is issued. A challenge to the interest of the appeals examiner made during the course of the hearing shall be decided and ruled upon by the presiding appeals examiner. If the presiding appeals examiner grants the challenge and withdraws from the case, the appeals examiner shall adjourn the hearing and promptly return the case to the Clerk of the Commission for rescheduling before a different appeals examiner. If a party challenges the interest of an appeals examiner after the conclusion of the hearing, but before the decision is issued, the challenge shall be set forth in writing with the reasons therefor, and sent to the chief appeals examiner at the Administrative Office of First Level Appeals of the Commission in Richmond, Virginia. If the Chief Appeals Examiner or his the Chief Appeals Examiner's designee does not remove the challenged appeals examiner, the appeals examiner shall render a decision in the case. If the challenged appeals examiner is removed, is unavailable or chooses to withdraw, the Chief Appeals Examiner or his the Chief Appeals Examiner's designee shall decide the case. Failure to remove the appeals examiner shall be subject to review by the commission on appeal by the aggrieved party, in the same manner as any other issue in the case.

I. Any party who is unable to appear for the scheduled hearing, or who appeared but wishes to present additional evidence, may request a reopening of the case, which will be granted if good cause is shown. The request, together with the reasons therefor, shall be made in writing and sent to the Chief Appeals Examiner in the administrative office of the commission in Richmond, Virginia.

1. Where a request for reopening is received before the decision of the appeals examiner is issued, the decision shall be withheld if the Chief Appeals Examiner, the Chief Appeals Examiner's designee, or the appeals examiner assigned to the case, finds that the reasons given in the request, if proven, would establish good cause to reopen the hearing. In that event, a hearing will be scheduled on the reopening issue. If, after the hearing, the appeals examiner should decide that reopening is warranted, the case shall be reopened for the taking of additional evidence. If no reasons are given for the reopening request, or if the reasons given would not establish good cause to reopen the hearing, the appeals examiner shall render a decision denying the request and adjudicating the merits of the case. In any event, the decision concerning the issue of reopening shall be subject to review by the commission on appeal by the aggrieved party.

2. A request for reopening after the appeals examiner has issued his a decision on the merits of the case, but within the appeal period, shall be mailed to the Administrative Law Division's Office of Commission Appeals in the administrative office of the commission in Richmond, Virginia and shall set forth in writing the reasons therefor. If the commission is of the opinion that the written request establishes good cause for reopening, it shall remand the case to the Chief Appeals Examiner of First Level Appeals. If the commission is of the opinion that the written request does not set forth good cause for reopening, it shall treat the request as an appeal to the commission on the merits of the case pursuant to this part. The commission may, in its discretion, schedule a hearing to receive evidence with respect to a reopening request or remand the case to the appeals examiner to hear and decide the reopening issue.

3. Once a decision is rendered and becomes final, it cannot be reopened for any reason. A request for a reopening after the decision of the appeals examiner has become final shall be treated as an untimely appeal to the commission pursuant to this chapter. In the discretion of the commission, a hearing on the issue of reopening may be held.

16VAC5-80-30. Commission review.

A. The claimant, his the claimant's liable employer, or any subsequent employing unit with a direct interest in an issue may appeal from an adverse appeals examiner's decision as provided in § 60.2-620 of the Code of Virginia.

1. Appeals should be filed with the commission's Administrative Law Division Division's Office of Commission Appeals, in one of the following ways:

a. In person at any agency service location, including field offices, regional its workforce or adjudication centers, one-stop centers, or the commission's administrative office in Richmond, Virginia;

b. By mail to the Administrative Law Division Division's Office of Commission Appeals, at the address specified on the appeals examiner's decision;

c. By facsimile transmission to the Administrative Law Division Division's Office of Commission Appeals, at the facsimile number specified on the appeals examiner's determination or decision; or

d. By the Internet to the site or address specified by the commission.

2. Appeals shall be presumed to be filed on the date of receipt by the commission. An appeal mailed to the commission shall be presumed to be filed on the date of postmark by the United States Postal Service. If no postmark appears on the envelope, the appeal shall be presumed to be filed on the date it was received by the commission.

3. At any time before the decision of the appeals examiner becomes final, the commission may on its own motion assume jurisdiction of any case pending before an appeals examiner and place such case on the appeal docket of the commission. The commission may consider and review the case and affirm, modify, or set aside and vacate the decision of the appeals examiner on the basis of the evidence previously submitted as shown by the record, or may direct the taking of additional evidence before the commission or the appeals examiner. Such additional evidence may not be taken unless notice of the time and place of the taking thereof has been mailed to all parties to the case at least 10 days before such time.

4. If the appeal to the commission is not filed within the statutory time limit set forth in § 60.2-620 of the Code of Virginia, the appellant shall set forth in writing the reasons for the late filing. If the reasons set forth, if proven, would show good cause for extending the appeal period, the commission shall schedule a hearing to take testimony on the issue of good cause for late filing. If the reasons set forth in the notice of appeal are insufficient to show good cause for late filing, or if no reasons are provided, the appeal shall be dismissed and the decision of the appeals examiner shall become the final decision of the commission.

B. Except as otherwise provided by this chapter, all appeals to the commission shall be decided on the basis of a review of the evidence in the record. The commission, in its discretion, may direct the taking of additional evidence after giving written notice of such hearing to the parties, provided:

1. It is shown that the additional evidence is material and not merely cumulative, corroborative or collateral, could not have been presented at the prior hearing through the exercise of due diligence, and is likely to produce a different result at a new hearing; or

2. The record of the proceedings before the appeals examiner is insufficient to enable the commission to make proper, accurate, or complete findings of fact and conclusions of law.

A party wishing to present additional evidence or oral argument before the commission must file a written request within 14 days from the date of delivery or mailing of the Notice of Appeal. A request for a hearing shall be deemed to be filed on the date of receipt by the commission. A request for a hearing mailed to the Office of Commission Appeals shall be deemed to be filed on the date of postmark by the United States Postal Service. In such cases, the postmark date shall be conclusive as to the date of filing. The commission shall notify the parties of the time and place where additional evidence will be taken or oral argument will be heard. Such notice shall be mailed to the parties and their last known representatives at least 10 days in advance of the scheduled hearing. A request to present additional evidence will be granted only if the aforementioned guidelines in this section are met. A timely request for oral argument will be granted unless, after a review of the record of the case, the commission determines that the record is either defective or insufficient, under which circumstances the case may be remanded to the appeals examiner for further proceedings.

3. Except as otherwise provided herein in this chapter, commission level hearings shall be conducted in person at the administrative office for the agency's Administrative Law Division in Richmond, Virginia. Upon the consent of all interested parties In its discretion, the commission may permit oral argument and other hearings to be conducted by telephone conference call. All parties shall have the right to submit a written argument in lieu of participating in an oral argument hearing. Parties may also submit affidavits in lieu of a personal appearance at hearings scheduled for additional evidence issues such as reopening of an appeals examiner's hearing or timeliness of an appeal to the Office of Commission Appeals. The commission may prescribe reasonable conditions for the submission of written arguments or affidavits.

4. Notwithstanding any other provision of this chapter, the commission shall have the authority to schedule a hearing on its own motion, to be conducted in person, by telephone conference call, or by split hearing, whenever it believes doing so would serve the ends of justice.

C. Postponements, continuances, and withdrawals of appeals before the commission shall be handled in the same manner as First Level Appeals, as set forth in this chapter, except that requests shall be made through the Office of Commission Appeals or through the special examiner assigned to hear the case. Only a special examiner shall have the authority to grant a postponement.

D. A transcript of the appeals examiner's hearing shall be provided to the parties whenever there has been a timely request for a hearing before the commission; provided, however, that no transcript need be provided if the purpose of the commission hearing is limited to receiving evidence to determine (i) whether the appeal was timely filed and, if not, whether good cause exists to extend the statutory appeal period or (ii) whether good cause exists to reopen the appeals examiner's hearing. A hearing before the commission for additional evidence shall be conducted under the same rules as outlined in subsection F of 16VAC5-80-20 for the conduct of First Level Appeals hearings, except that the party being granted the right to present additional evidence shall proceed first. If both parties are allowed to present additional evidence, the appellant shall proceed first. Oral argument shall commence with the appellant, allowing the appellee the chance to respond with oral argument and rebuttal, and close with the appellant in rebuttal.

E. The decision of the commission affirming, modifying, or setting aside any decision of an appeals examiner shall be in writing and shall be delivered or mailed to each party to the appeal as well as to their known representatives who have requested to be notified of the decision. The date of such notification shall be recorded on the commission's appeal docket.

F. Any party to an appeal before the commission who was unable to appear for the scheduled hearing may request a reopening of the matter. The request shall be in writing to the Office of Commission Appeals and shall set forth the basis upon which it is being made. If the commission is of the opinion that the reasons in the request show good cause to reopen, the request for reopening shall be granted. If the commission is of the opinion that the reasons given in the request do not show good cause, reopening shall be denied. In the discretion of the commission, a hearing on the issue of reopening may be held. Once a decision is rendered and has become final, the case may not thereafter be reopened for any reason.

G. If any party believes that the presiding special examiner exhibits bias, prejudice, a lack of impartiality, or has an interest in the outcome of the proceeding, a challenge to the special examiner's interest shall be promptly made after the discovery of the facts on which such challenge is based. A challenge to the interest of the special examiner may be made orally during a hearing or in writing before or after a hearing, but only prior to the date the commission's decision becomes final. If made before or at the hearing, all parties present shall be afforded an opportunity to address the merits of the challenge. The ruling may be made orally at the hearing or in writing after the hearing has been concluded. If the special examiner rules orally and denies the challenge, that ruling shall also be reduced to writing and included in the commission's final decision. If the special examiner grants the challenge, then the case shall be referred to the chief administrative law judge, or his the chief administrative law judge's designee, for reassignment. A challenge to the interest of the special examiner that is made after the hearing has been conducted shall be referred to the presiding special examiner for review and resolution; provided, however, that if the special examiner has already ruled on the challenge during the hearing or in a decision, the matter shall be referred to the chief administrative law judge for resolution. The commission may schedule a hearing to take evidence with respect to any challenge, or request the parties to submit affidavits, memoranda, or briefs with respect to the challenge.

A written challenge made before or after the hearing has been conducted shall be submitted to the Chief Administrative Law Judge, Administrative Law Division, Office of Commission Appeals, at the commission's administrative office in Richmond, Virginia. A party's disagreement with a procedural or evidentiary ruling is not a basis, standing alone, for challenging the interest of a special examiner.

16VAC5-80-40. Oaths, subpoenas, ex parte communications, and approval of attorney's fees.

A. The special examiner, the appeals examiner, and the Clerk of the Commission shall have the power to administer oaths, to take depositions, certify to official acts, issue subpoenas, compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records, and to take such action as may be necessary in any hearing.

B. Upon the request of any party to a proceeding, the Clerk of the Commission, in the name of the commission, may issue subpoenas requiring the attendance of witnesses at any designated time and place fixed by the special examiner or appeals examiner for the hearing of a claim or any issue therein.

Upon a written request of any party specifying with reasonable certainty any books, papers, correspondence, memoranda, or other desired records, the Clerk of the Commission may issue a subpoena duces tecum requiring the production of such evidence at any designated time and place fixed by the special examiner or appeals examiner for the hearing of a claim or any issue therein.

A request for a subpoena ad testificandum or subpoena duces tecum may be denied if there is no showing of relevance to the subject of the appeal, if it appears that the request would only produce cumulative evidence or testimony, or if it appears that the request would not serve the interest of the party making it. If such request is denied, it may be renewed at the hearing and a proffer of evidence or testimony may be made. The appeals examiner or special examiner hearing the case shall continue the hearing if it appears that the subpoena should be issued.

C. Witnesses subpoenaed for appeals before the appeals examiner or the commission, or both, shall, upon request, be allowed expenses as provided in § 14.1-190 17.1-612 of the Code of Virginia.

D. No party or authorized representative of a party shall confer, engage in ex parte communications, or otherwise communicate in any manner with the presiding appeals examiner or special examiner regarding substantive, procedural, or other matters that could be reasonably expected to influence the outcome of the case or case decision without first giving adequate notice to all other parties, and affording such other parties full opportunity to participate, or otherwise to make appropriate response to the substance of the communication. For the purpose of this subsection, the term "parties" shall include claimants and any employers or employing units that have a direct interest in the outcome of the pending case. Notice of an ex parte communication given to a party's attorney of record or duly authorized representative shall constitute notice to the party.

This provision shall not apply to deputies who conduct predetermination fact-finding proceedings on benefit eligibility issues, and field tax representatives who conduct audits and investigations regarding tax liability issues.

E. Approval of fees for representation of claimants.

1. Pursuant to § 60.2-123 of the Code of Virginia, no attorney or other individual representing a claimant before an officer of the commission may charge or receive a fee unless approved by the commission.

2. All fee requests shall be submitted to the Chief Administrative Law Judge or his the Chief Administrative Law Judge's designee. An attorney or other representative for a claimant shall, upon request, provide the commission with such information as it deems necessary to assess the reasonableness of the request submitted for approval. Such information may include, but shall not be limited to, written fee agreements, invoices, and detailed summaries of services provided.

3. In assessing the reasonableness of an attorney's request for approval of a fee, the commission shall consider the Virginia Rules of Professional Conduct adopted by the Virginia Supreme Court, Part 6, II.

When applicable, these factors shall also be considered in approving a fee request from nonlawyer representatives. Notwithstanding these factors, no fee shall be approved that exceeds 25% of the claimant's maximum benefit amount.

4. No fee shall be approved until the agency determination or decision issued pursuant to § 60.2-619, 60.2-620, or 60.2-622 has become final, provided, however, that in those cases where an attorney or representative is representing a claimant through multiple stages of the administrative adjudication and appeal process, the commission may approve an interim fee award not to exceed the lesser of $400 or 10% of the claimant's maximum benefit amount.

FORMS (16VAC5-80)

Notice of Appeal Hearing, VEC-AE-1 (rev. 6/91).

Notice of Telephonic Hearing VEC-AE-1A (rev. 5/92).

Notice of Appeal VEC-AE-2 (rev. 6/91).

Request for Withdrawal of Appeal, VEC-AE-10 (rev. 6/1/66).

Notice of Telephonic Hearing Before an Appeals Examiner, A-FLA-028 (rev. 7/2012)

Notice of In-Person Hearing Before an Appeals Examiner, A-FLA-028 (rev. 7/2012)

Notice of First Level Appeals, A-FLA-002 (rev. 7/2012)

Notice of Claims Filed During Labor Dispute, VEC-AE-15 (rev. 7/1970)

Notice of Commission Hearing for Oral Argument, VEC-C-1 (rev. 6/90).

Notice of Commission Hearing for Additional Evidence, VEC-C-1A (rev. 6/90).

Employer Notice of Pre-Determination Proceeding, B-10EX.

Claimant Notice of Fact Finding Interview, B-10EXP.

Fact Finding Report, IB-11 (rev. 2/72).

Separation-Fact Finding Report, IB-11S (rev. 10/79).

Claimant Notice of Predetermination Proceeding, VEC-B-10D (rev. 2/72).

Employer Notice of Predetermination Proceeding, VEC-B-10E (rev. 4/82).

Claimant's Statement Concerning Voluntary Quit, VEC-B-60.1 (rev. 11/94).

Claimant's Statement Concerning Discharge, VEC-B-60.2 (rev. 11/94).

Claimant's Statement Concerning Able and Available, VEC-B-60.5 (rev. 11/94).

Claimant's Statement Concerning Refusal of Job or Referral, VEC-B-60.6 (rev. 11/94).

Claimant's Request for Training Approval, VEC-B-60.7 (rev. 11/94).

Claimant's Statement Concerning Voluntary Quit Illness, VEC-B-60.8 (rev. 11/94).

Supplemental Sheet - Claimant and Employer Statement, VEC-B-60SUP (eff. 11/94).

Notice of Deputy's Determination, VEC-BPC-54 (eff. 6/90).

Notice of Commission Appeals, A-CLA-025 (rev. 7/2012)

Notice of Commission Hearing for Oral Argument, A-CLA-067 (rev. 12/2016)

Notice of Commission Hearing for Additional Evidence, A-CLA-067 (rev. 12/2016)

Employer Notice of Telephonic Fact Finding Interview, B-10EX (rev. 1/2015)

Claimant Notice of Telephonic Fact Finding Interview, B-10EXP (rev. 7/2017)

Notice of Deputy's Determination, VEC-54 (rev. 3/2010)

Notice of Deputy's Determination - Overpayment, VEC-BPC-54 (eff. 5/2009)

Notice of Deputy's Determination - Fraud, VEC-BPC-54F (rev. 9/2007)