TITLE 16. LABOR AND EMPLOYMENT

VIRGINIA EMPLOYMENT COMMISSION

Fast-Track Regulation

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

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: May 21, 2025.

Effective Date: June 5, 2025.

Agency Contact: Ashley Ervin, Director of Policy and Legislative Affairs, Virginia Employment Commission, 6606 West Broad Street, Richmond, VA 23220, telephone (804) 774-2713, or email ashley.ervin@vec.virginia.gov.

Basis: Section 60.2-111 of the Code of Virginia authorizes the Virginia Employment Commission to adopt, amend, or rescind such rules and regulations as it deems necessary or suitable to carry out the commission's duties and powers. Section 60.2-623 authorizes the commission to prescribe the manner in which disputed claims shall be presented, reports required from the claimant and from employers, and the conduct of hearings and appeals before any deputy, appeals examiner, or the commission.

Purpose: The amendments are being made to better reflect the current unemployment insurance (UI) process by removing language that has become obsolete due to technology or internal process changes. The updates conform to existing federal regulatory requirements and are beneficial to the welfare of the public because the changes more accurately reflect the UI process, allowing claimants to understand the process and claimant obligations under the regulation.

Rationale for Using Fast-Track Rulemaking Process: This action is expected to be noncontroversial and therefore appropriate for the fast-track rulemaking process because the amendments bring the regulation up to speed with current practices and remove obsolete language.

Substance: The amendments add the word "electronically" as a delivery method for determinations or decisions. This change will bring the regulation up to date with current practices, as the commission uses both the mail and UI portal to communicate with claimants and employers.

Issues: The primary advantage to both the public and the agency is that the regulation will now conform to the current practices of the UI division and remove language already addressed by federal regulations or prior existing commission regulations to reduce the overall regulatory burden. There is no disadvantage, as no changes in the UI process will occur because of the amendments.

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. The Virginia Employment Commission (VEC) proposes to (i) remove text concerning the promptness of determinations and decisions and (ii) add that determinations and decisions can be delivered electronically.

Background. The current regulation states that "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." In the first sentence, VEC proposes to remove all of the text prior to "the deputy shall render a determination or decision." The agency points out that "The timeline for issuing decisions or determinations is governed by the Code and is also federally regulated. There will be no impact as a result of the change because the VEC will continue to operate based on federal timeliness standards."² Also, in the last sentence, VEC proposes to add the word "electronically" after "promptly delivered."

Estimated Benefits and Costs. As removing the text concerning the promptness of determinations and decisions would have no impact on promptness in practice, this proposed change would not have substantive impact. VEC has indicated that determinations and decisions are already being communicated electronically. Thus, the proposal to add the word electronically would moderately improve clarity in that it would better describes what occurs in practice, but otherwise would have no substantive impact.

Businesses and Other Entities Affected. The regulation concerns the adjudication of unemployment claims and therefore pertains to all individuals who may at some time apply for unemployment benefits, as well as VEC staff. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.³ 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.⁴ As the proposed amendments neither increase net costs nor reduce net benefits, no adverse impact is indicated.

Small Businesses⁵ Affected.⁶ The proposed amendments do not appear to adversely affect small businesses.

Localities⁷ Affected.⁸ The proposed amendments neither disproportionately affect particular localities nor 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 do not substantively affect the use and value of private property or 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 § 60.2-619 of the Code of Virginia (https://law.lis.virginia.gov/vacode/title60.2/chapter6/section60.2-619/#v2/) for the relevant Code of Virginia section, and https://oui.doleta.gov/unemploy/pdf/Core_Measures.pdf for the applicable federal regulatory metrics.

³ 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.
⁴ 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.

⁵ 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."

⁶ 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.

⁷ "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.
⁸ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Response to Economic Impact Analysis: The Virginia Employment Commission has reviewed the economic impact analysis prepared by the Department of Planning and Budget. The commission has added a reference to § 60.2-619 of the Code of Virginia as suggested by the Director of the Office of Regulatory Management. The regulation also refers to promptly delivering a decision by mail or electronically.

Summary:

In response to Executive Order 19 (2022), the amendments (i) clarify current unemployment insurance practices, (ii) update language to conform to current policies, (iii) remove duplicative language, and (iv) eliminate requirements already addressed by federal statute or 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 that could affect the claimant's entitlement to benefits, the deputy shall initiate further investigation. The deputy may contact the parties 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 conducted with a deputy when deemed necessary by the commission in order to resolve an outstanding issue on a claim.

The proceeding may be conducted telephonically 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. 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 The deputy shall render a determination or decision in writing in accordance with § 60.2-619 of the Code of Virginia, 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 electronically or mailed to the parties at their last known addresses or designated point of contact.