TITLE 16. LABOR AND EMPLOYMENT

VIRGINIA EMPLOYMENT COMMISSION

Fast-Track Regulation

Title of Regulation: 16VAC5-70. Interstate and Multistate Claimants (amending 16VAC5-70-10).

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

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: April 9, 2025.

Effective Date: April 24, 2025.

Agency Contact: Ashley Ervin, Policy Planning Specialist III, Virginia Employment Commission, 6606 West Broad Street, Richmond, VA 23230, telephone (804) 786-3020, or email ashley.ervin@vec.virginia.gov.

Basis: Section 60.2-111 of the Code of Virginia authorizes the Virginia Employment Commission (VEC) to adopt, amend, or rescind such rules and regulations as it deems necessary or suitable to carry out the commission's duties and powers.

Purpose: The amendments remove language that has become obsolete due to technology or internal process changes. Removal of the language makes the regulation less burdensome and allows the agency to operate more efficiently, which in turn benefits the welfare of Virginia citizens. By eliminating unnecessary complexities, the agency can better focus on providing high-quality support and care to Virginia residents.

Rationale for Using Fast-Track Rulemaking Process: This action is expected to be noncontroversial because the requirements outlined in the existing regulation are covered by federal regulations. The commission is part of the Interstate Reciprocal Overpayment Recovery Agreement (IRORA), which governs interstate claims.

Substance: The amendments remove provisions that regulate other U.S. states and Canada during the unemployment insurance (UI) process, which is already under federal agreement.

Issues: The advantage to both the public and the agency is the regulations will now conform to the current practices of the UI division and remove language already addressed by IRORA or prior existing VEC regulations, to reduce the overall regulatory burden. There are no disadvantages as no changes in the UI process will occur because of the updates.

Department of Planning and Budget 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 and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. In response to Executive Order 19 (2022) and Executive Directive 1 (2022), the Virginia Employment Commission (VEC) proposes to amend the regulation governing interstate and multistate claimants of unemployment insurance benefits to remove language that it reports is duplicative of federal regulations, specifically the Interstate Reciprocal Overpayment Recovery Agreement (IRORA).

Background. Executive Directive 1 (2022) directs executive branch entities under the authority of the Governor to initiate regulatory processes to reduce by at least 25% the number of regulations not mandated by federal or state statute, in consultation with the Office of the Attorney General, and in a manner consistent with the laws of the Commonwealth.² Accordingly, VEC proposes to remove language regarding cooperative agreements with other states adopting a similar agreement for the payment of benefits to interstate claimants. VEC reports that the language that would be repealed is duplicative of statutory requirements. Section 60.2-609 of the Code of Virginia directs the agency to participate in any arrangements for the payment of compensation on the basis of combining an individual's wages and employment covered under the unemployment compensation laws of two or more states. Such arrangements shall be approved by the United States Secretary of Labor, in consultation with the state unemployment compensation agencies, to ensure the prompt and full payment of compensation in such situations. In addition, VEC reports that the specific interstate rules are governed by IRORA and that the provisions that would be repealed are covered in the ETA Employment and Training Administration Handbook No. 392, Section 2 and in the Handbook for Interstate Overpayment Recovery, which is an alphabetical compilation of pages prepared by each state to provide a reference directory when assistance with benefit payment control is needed from another state.³

Estimated Benefits and Costs: The proposed amendments are intended to remove language that is duplicative of federal regulations and are not expected to create new costs.

Businesses and Other Entities Affected. The proposed amendments would affect workers who file a multistate claim for unemployment insurance benefits in Virginia. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁴ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.⁵ As the proposed amendments neither increase net costs nor reduce net benefits, no adverse impact is indicated.

Small Businesses⁶ Affected.⁷ The proposed amendments do not adversely affect small businesses.

Localities⁸ Affected.⁹ The proposed amendments do not disproportionately affect particular localities or affect costs for local governments.

Projected Impact on Employment. The proposed amendments do not affect total employment.

Effects on the Use and Value of Private Property. The proposed amendments neither affect the use and value of private property nor real estate development costs.

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¹ Section 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.

² See https://www.governor.virginia.gov/media/governorvirginiagov/governor-of-virginia/pdf/ed/ED-1-Regulatory-Reduction.pdf.

³ See the ETA Handbook here: https://oui.doleta.gov/dmstree/handbooks/392/hb_392_2nd.pdf. The Handbook for Interstate Overpayment Recovery is described on page IX-I but does not appear to be available online.

⁴ Pursuant 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.

⁵ 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. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

⁶ Pursuant 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."

⁷ 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.

⁸ "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.

⁹ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Virginia Employment Commission has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.

Summary:

Pursuant to Executive Order 19 (2022), the amendments (i) eliminate duplicative or obsolete provisions and (ii) remove requirements that seek to regulate other U.S. states and Canada.

16VAC5-70-10. Cooperative agreement.

A. This section shall govern the commission in its administrative cooperation with other states adopting a similar regulation for the payment of benefits to interstate claimants.

B. A week of unemployment for an interstate claimant shall consist of any week of unemployment as defined in the law of the liable state from which benefits with respect to such week are claimed.

C. Each interstate claimant shall be registered for work through any public employment office in the agent state when and as required by the law, regulations, and procedures of the agent state. Such registration shall be accepted as meeting the registration requirements of the liable state.

Each agent state shall duly report to the liable state in question whether each interstate claimant meets the registration requirements of the agent state.

D. If a claimant files a claim against any state and it is determined by such state that the claimant has available benefit credits in such state, then claims shall be filed only against such state as long as benefit credits are available in that state. Thereafter, the claimant may file claims against any other state in which there are available benefit credits. For the purposes of this chapter, benefit credits shall be deemed to be unavailable whenever benefits have been exhausted, terminated, or postponed for an indefinite period or for the entire period in which benefits would otherwise be payable or whenever benefits are affected by the application of a seasonal restriction.

E. Claims for benefits or a waiting period shall be filed by interstate claimants by Internet, telephone, or other such means as the commission may authorize.

Claims shall be filed in accordance with agent state regulations for intrastate claims.

1. With respect to claims for weeks of unemployment in which an individual was not working for the individual's regular employer, the liable state shall, under circumstances which it considers good cause, accept a continued claim filed up to one week or one reporting period late. If a claimant files more than one reporting period late, an initial claim shall be used to begin a claim series and no continued claim for a past period shall be accepted.

2. D. With respect to weeks of unemployment during which an individual is attached to the individual's regular employer, the liable state shall accept any claim which is filed within the time limit applicable to such claims under the law of the agent state.

F. The agent state shall, in connection with each claim filed by an interstate claimant, ascertain and report to the liable state in question such facts relating to the claimant's availability for work and eligibility for benefits as are readily determinable in and by the agent state. The liable state may utilize the telephone or mail to directly ascertain facts from the parties.

The agent state's responsibility and authority in connection with the determination of interstate claims shall be limited to investigation and reporting of relevant facts. The agent state shall not refuse to take an interstate claim.

G. The agent state shall afford all reasonable cooperation in the holding of hearings in connection with appealed interstate benefit claims.

With respect to the time limits imposed by the law of a liable state upon the filing of an appeal in connection with a disputed benefit claim, an appeal made by an interstate claimant shall be deemed to have been made and communicated to the liable state on the date when it is received by any qualified officer of the agent state, or the date it was mailed by the claimant, whichever is earlier.

H. This section shall apply in all its provisions to claims taken in and for Canada.