Current through Register Vol. 41, No. 3, September 23, 2024
A. The claimant, 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's Office of First Level Appeals in one
of the following ways:
a. In person at any
agency service location, including workforce, adjudication, or one-stop centers
or the commission's administrative office in Richmond, Virginia;
b. By mail to the Administrative Law
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's Office of First Level Appeals at the facsimile
number specified on the deputy's determination or decision;
d. By the Internet at a site or address
specified by the commission; or
e.
By an electronic format as prescribed 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 U.S. 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 a party's
authorized representative expressing a desire to appeal shall be sufficient to
initiate an appeal. Agency personnel shall furnish an appellant or 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
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 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 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 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 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 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 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 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 the appeal, a request, together with the
reasons therefor, must be made in writing and sent to the Clerk of the
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 that
party's 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 delivered in a format prescribed by the commission 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 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 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 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 a decision on the merits of the
case, but within the appeal period, shall be submitted in a format prescribed
by the commission 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.
Statutory Authority: §§ 60.2-111 and 60.2-623 of
the Code of Virginia.
