Bill Text: VA SB381 | 2024 | Regular Session | Prefiled
Bill Title: Unemployment compensation; employer's failure to respond to requests for information, etc.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2024-03-28 - Governor: Acts of Assembly Chapter text (CHAP0236) [SB381 Detail]
Download: Virginia-2024-SB381-Prefiled.html
Be it enacted by the General Assembly of Virginia:
1. That §§60.2-528.1 and 60.2-619 of the Code of Virginia are amended and reenacted as follows:
§60.2-528.1. Charging of benefits relating to certain overpayments; penalty for failure to respond to requests for information.
A. As used in this section, unless the context requires a different meaning:
"Employer," with regard to the timeliness and adequacy of responses, includes an agent of the employer used by the employer to respond to the Commission on the employer's behalf; however, an employer's agent's failure to respond timely or adequately to requests for information with regard to claims involving the agent's other clients shall not be used in determining whether the employer has established a pattern of failing to respond timely or adequately to written requests for information.
"Erroneous payment" means a payment of benefits under this title made prior to a determination by the Commission that the claimant is not eligible or qualified for the benefits paid.
"Information relating to a claim" means information material to a determination or decision by the Commission relating to the payment of benefits under this title, including separation information and information required by the Commission for the establishment of a claim for compensation and information about wages, days, and hours worked.
"Review
period" means the 48 consecutive calendar month period ending on the June
30 that precedes the Commission's next annual calculation of the employer's
benefit ratio pursuant to subdivision A 1 a of §60.2-530.
"Written request" includes a request sent electronically.
B. An employer's account shall not be relieved of charges relating
to an erroneous payment if the Commission determines that:1.
The erroneous payment was made because the employer failed
to respond timely or adequately to a written request by the Commission for
information relating to the claim; and
2. The employer has
established a pattern of failing to respond timely or adequately to written
requests by the Commission for information relating to claims.
C. For purposes of this section, an employer's response to a written request by the Commission for information relating to a claim shall be deemed not to be:
1. "Adequate" if it fails to provide sufficient material facts to enable the Commission to make a correct determination regarding a claim for benefits; however, (i) a response shall not be deemed inadequate if the Commission failed to request the necessary information or if information is provided in a format other than as requested, provided that the information is capable of being read by the recipient, and (ii) there shall be a rebuttable presumption that an employer that participates in a fact-finding interview or responds fully to the questions set out on the written request for information has provided an adequate response; or
2. "Timely" if it is not made within 10 calendar days after the delivery or mailing of the Commission's request for information.
D. An
employer shall be deemed to have established a pattern of failing to respond
timely or adequately to written requests for information relating to claims if
the Commission determines that the employer has failed to respond timely or
adequately to a written request for information relating to a claim on four or
more occasions within the applicable review period. The Commission shall not
find that an employer has established a pattern of failing to respond timely or
adequately to written requests for information relating to claims unless the
Commission has provided the employer with the notices required pursuant to
subsection E The Commission shall
include in any written request for information from an employer notice of (i)
the deadline to provide a timely response, (ii) the requirement to provide an
adequate response, and (iii) the consequences of such employer's failure to
provide such timely and adequate response. Upon the Commission's receipt of an
employer's response to a written request for information, the Commission shall
inform the employer of the date of such receipt.
E. The Commission shall provide
the employer with a written notice following the
employer's first, second, and third determinations that each instance in which the
employer failed
fails to respond timely or
adequately to a written request for information relating to a claim within the applicable review period. Each such notice shall be
electronically delivered,
including delivery through the Employer Self-Service Tax System website
maintained by the Commission, or mailed to the employer's last known address of agency record employer and shall advise the
employer of the potential
implications of the employer's failure to respond timely
or adequately to written requests for such information.
F. Upon the Commission's
third determination within the applicable
review period that an employer failed to respond timely or
adequately to a written request for information relating to a claim, the Commission shall
assess upon the employer a
civil penalty of $75. A copy of the notice of assessment of a civil penalty
shall be delivered or mailed to considered to have
waived all rights in connection with the claim,
including participation and appeal rights otherwise available pursuant to Article 5 (§
60.2-619 et seq.) of Chapter 6,
unless the employer with
demonstrates to the notice of the
employer's third such failure as required pursuant to subsection E. Civil
penalties collected pursuant to this subsection shall be paid into the Special
Unemployment Compensation Administration Fund established pursuant to §
60.2-314. The Commission may
compromise, settle, and adjust any such penalty as authorized by §60.2-521 that good cause exists for such failure.
G. An employer shall not be found to have failed to respond timely or adequately to a written request by the Commission for information relating to a claim if the Commission finds good cause for such failure. The Commission may not find good cause for an employer's failure to respond timely or adequately to such a written request unless the failure is due to compelling and necessitous circumstances beyond the employer's control.
H. If the Commission has
determined that an employer has established a pattern of failing to respond
timely or adequately to written requests for information relating to claims,
such determination shall remain in effect until the end of the applicable
review period. Any benefit charges for an erroneous payment
that the Commission has determined are not to be relieved from the employer's
account pursuant to subsection B shall remain chargeable to the employer's
account through the period ending on the fourth June 30 following the
Commission's determination.
I. The issue of whether
an employer's account shall be relieved of charges relating to an erroneous
payment, including whether an erroneous payment was made because the employer
failed to respond timely or adequately to a written request by the Commission
for information relating to the claim, shall be decided in every Commission
proceeding arising from an employer's appeal of an award of benefits. Any such
decision shall be subject to appeal pursuant to §60.2-620. Final decisions
shall be used in determining whether the employer has established a pattern of
failing to respond timely or adequately to written requests for information
relating to claims, whether the employer is subject to a civil penalty pursuant
to subsection F, and whether the Commission has given the notices required
pursuant to subsection E.
J.
The costs of benefits charged to any governmental entity, Indian tribe, or
nonprofit entity that is a reimbursable employing unit under this title shall
not include any credits of benefit overpayments actually collected by the
Commission if the Commission finds that the overpayment was made because the
entity or its agent was at fault for failing to respond timely or adequately to
a written request for information relating to a claim and
the entity or agent has established a pattern of failing to respond timely or
adequately to such requests.
K. J. If the
erroneous payment results from a combined-wage claim, the determination of
noncharging for the combined-wage claim shall be made by the paying state. If
the response from the employer does not meet the criteria established by the
paying state for an adequate or timely response, the paying state shall
promptly notify the transferring state of its determination, and the employer
shall be appropriately charged.
L. K. This
section applies to erroneous payments established on or after July 7 1, 2013
2024.
§60.2-619. Determinations and decisions by deputy; appeals therefrom.
A. 1. A representative designated by the Commission as a
deputy, shall promptly examine the
claim. The deputy shall not
examine or consider in the claim review
process (i) facts contained
within the employer's untimely or inadequate response, as
identified by the Commission pursuant to §60.2-528.1,
without exception, or (ii)
information or evidence from an employer or third
party, unless the Commission,
either electronically or by written copy according to the claimant's election, provides
the claimant with a reasonable opportunity to review and respond to
such information or evidence, and any such response
is also
considered in the deputy's evaluation of
the claim. On the basis of the facts
found by him, the deputy shall either:
a. Determine whether or not such claim is valid, and if valid, the week with respect to which benefits shall commence, the weekly benefit amount payable and the maximum duration thereof; or
b. Refer such claim or any question involved therein to any appeal tribunal or to the Commission, which tribunal or Commission shall make its determination in accordance with the procedure described in §60.2-620.
2. When the payment or denial of benefits will be determined by the provisions of subdivision A 2 of §60.2-612, the deputy shall promptly transmit his full finding of fact with respect to that subdivision to any appeal tribunal, which shall make its determination in accordance with the procedure described in §60.2-620.
B. Upon the filing of an initial claim for benefits, the Commission shall cause an informatory notice of such filing to be mailed to the most recent 30-day or 240-hour employing unit of the claimant and all subsequent employing units, and any reimbursable employing units which may be liable for reimbursement to the Commission for any benefits paid. However, the failure to furnish such notice shall not have any effect upon the claim for benefits.
C. Notice of determination upon a claim, the
reasoning behind the decision, and a statement of case-specific facts material
to the determination shall be promptly given to the
claimant by delivering or by mailing such notice to the claimant's last known
address. In addition, notice of any determination which involves the
application of the provisions of §60.2-618, together with the reasons
therefor, shall be promptly given in the same manner to the most recent 30-day
or 240-hour employing unit by whom the claimant was last employed and any
subsequent employing unit which is a party. The Commission may dispense with
the giving of notice of any determination to any employing unit, and such
employing unit shall not be entitled to such notice if it has failed to respond
timely or adequately to a written request of the Commission for information, as
required by §60.2-528.1, from which the deputy may have determined that the
claimant may be ineligible or disqualified under any provision of this title.
The deputy shall promptly notify the claimant of any decision made by him the
deputy, the reasoning behind
the decision, and a statement of
case-specific facts material to the determination at any
time which in any manner denies benefits to the claimant for one or more weeks. As used in this subsection, the reasoning behind
the decision means an explanation in plain language of (i) the law or
regulation upon which the determination is based; (ii) the application of the
law to the material information or evidence obtained from the claimant,
employer, or third party; and (iii) the legal conclusion drawn from the
application of the law to such information or evidence.
D. Such determination or decision shall be final unless the claimant or any such employing unit files an appeal from such determination or decision (i) within 30 calendar days after the delivery of such notification, (ii) within 30 calendar days after such notification was mailed to his last known address, or (iii) within 30 days after such notification was mailed to the last known address of an interstate claimant. For good cause shown, the 30-day period may be extended. A claim that the Commission has determined to be invalid because of monetary ineligibility shall first be subject to review only upon a request for redetermination pursuant to §60.2-629. The Commission shall issue a new monetary determination as a result of such review, and such monetary determination shall become final unless appealed by the claimant within 30 days of the date of mailing. The Commission shall clearly set out the process for requesting a redetermination and the process for filing an appeal on each monetary determination issued. Monetary ineligibility does not include an appeal on the effective date of the claim, unless the claimant has requested and received a redetermination of the monetary determination pursuant to § 60.2-629.
E. Benefits shall be paid promptly in accordance with a determination or redetermination under this chapter, or decision of an appeal tribunal, the Commission, the Board of Review or a reviewing court under §§ 60.2-625 and 60.2-631 upon the issuance of such determination, redetermination or decision, regardless of the pendency of the period to file an appeal or petition for judicial review that is provided in this chapter, or the pendency of any such appeal or review. Such benefits shall be paid unless or until such determination, redetermination or decision has been modified or reversed by a subsequent redetermination or decision, in which event benefits shall be paid or denied for weeks of unemployment thereafter in accordance with such modifying or reversing redetermination or decision. If a decision of an appeal tribunal allowing benefits is affirmed in any amount by the Commission, benefits shall continue to be paid until such time as a court decision has become final so that no further appeal can be taken. If an appeal is taken from the Commission's decision, benefits paid shall result in a benefit charge to the account of the employer under §60.2-530 only when, and as of the date on which, as the result of an appeal, the courts finally determine that the Commission should have awarded benefits to the claimant or claimants involved in such appeal.
