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'This ... demands immediate attention': Judge calls time on VEC response to suit over jobless claims
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Virginia Employment Commission

'This ... demands immediate attention': Judge calls time on VEC response to suit over jobless claims

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RICHMOND—Amber Dimmerling has been waiting for answers from the Virginia Employment Commission since September, when the state agency abruptly ended her unemployment insurance benefits.

The 40-year-old single mother had moved from her home in McLean to her mother’s house in Fredericksburg after losing her restaurant job in Fairfax County at the beginning of the COVID-19 pandemic more than a year ago.

Now Dimmerling is one of five plaintiffs in a class-action lawsuit against the employment commission — and it’s a federal judge who wants answers from the VEC.

U.S. District Judge Henry Hudson said he’s not waiting for weeks to get them.

Hudson, ruling on a state request to delay its response to the lawsuit until May 28, gave Virginia Employment Commissioner Ellen Marie Hess until Tuesday to answer allegations her agency has unlawfully dawdled in handling tens of thousands of disputed claims for state and federal assistance, and illegally ended payments to Dimmerling and others without due process.

“Delays in this particular case may well have concrete and immediate impacts on Virginians struggling to make ends meet during a global pandemic,” the judge said in a ruling Wednesday that concluded “this matter demands immediate attention.”

A day earlier, a quartet of legal advocates said the VEC’s attempt to delay its response typified the problem facing unemployed Virginians who said they have tried unsuccessfully for months to get answers from the state agency on the status of their claims or the state’s reasons for suddenly halting payments they were entitled to receive.

The state had known about the impending lawsuit almost five months before it was filed April 15, representatives of the four organizations told Hudson on Tuesday. “And yet, in defense of a lawsuit premised on the allegation that the VEC cannot timely respond to Virginians seeking [unemployment insurance benefits] the VEC suggests that it also cannot timely respond to them here.”

State officials would not comment on the lawsuit or the judge’s ruling, but the top workforce adviser to Gov. Ralph Northam strongly defended the employment commission’s efforts to bring quick relief to unemployed Virginians who are eligible for it.

Megan Healy, who will become the state’s first secretary of labor July 1, said Virginia ranked sixth in the country last year by providing unemployment insurance benefits within 21 days to 84.7% of those who replied.

“We are going to pay people who are eligible and put money in their hands as fast as we can,” Healy said Wednesday.

However, Virginia ranked last in the country in a recent federal survey for meeting legal deadlines, processing only 2.4% of unemployment benefit claims that require formal adjudication to verify eligibility. “It’s just not acceptable,” said Sen. Jeremy McPike, D-Prince William, a member of the Joint Legislative Audit and Review Commission, which is launching a study of the VEC’s response during the pandemic.

Healy questions the reliability of the data in the recent survey, but she said the state will address the problem with a plan the administration will release by early next week for hiring an additional 100 to 300 people to adjudicate disputed claims. Virginia began the pandemic with just eight people processing those kinds of claims, and now employs about 100.

“We definitely want to get people benefits who are eligible,” she said.

Dimmerling and four other Virginia women are represented by the Virginia Poverty Law Center, the Legal Aid Justice Center, Legal Aid Works and Kelly Guzzo PLC, a law firm based in Fairfax County. They filed the suit in U.S. District Court in Richmond.

The suit alleges “unconscionable bureaucratic failures” had prevented tens of thousands of unemployed from getting not only their state unemployment insurance benefits but also substantial federal payments made under a series of emergency aid packages Congress adopted to help people survive the loss of work during the pandemic.

Those benefits were supposed to either become available immediately or after a timely resolution of any dispute over eligibility, the suit said.

“But for tens of thousands of Virginians, the unemployment benefits system has failed completely: either their claims for benefits have languished for months without any decisions made on their claims, or if they were lucky enough to begin receiving benefits, their benefits have been suddenly cut off without notice or explanation.”

Dimmerling was relying on her paycheck as a cashier at a restaurant in McLean when the pandemic hit in March 2020, and her job went away with restrictions Northam imposed to control the spread of the deadly coronavirus.

At the same time, the state suspended in-school instruction in public schools, which Dimmerling said imposed an insurmountable challenge in caring for her daughter, Lillianna, now 12.

“I really worked around her school schedule, so I had to make a decision,” she said. “I moved in with my mom in Fredericksburg.”

Last summer, her old employer contacted Dimmerling to see if she would work two shifts per week at the restaurant, now an hour and 15 minutes away. With the cost of travel and a sitter for her daughter, “I would have been losing money,” she said, adding her employer was sympathetic to her decision not to take the part-time work.

Dimmerling said she has called and written the VEC regularly since losing her benefit, which had dwindled to $73 per week after enhanced federal unemployment insurance expired at the end of July. She has missed the opportunity to collect subsequent federal payments under an emergency funding package enacted at the end of December.

“I haven’t talked to a person,” she said.

Pat Levy-Lavelle, an attorney at the Legal Aid Justice Center, said the state cannot legally stop unemployment insurance payments until the case is fully adjudicated, but the state system for handling those cases is backed up.

State officials won’t estimate how many people are awaiting adjudication, citing the pending lawsuit, but Levy-Lavelle said the VEC acknowledged and resolved more than 70,000 cases similar to Dimmerling’s last year, while an additional 7,500 or more remain pending.

“What Ms. Dimmerling faces is what thousands of Virginians face,” he said.

Healy, in the governor’s office, is sympathetic to those waiting for help.

However, she also has sympathy for employees at VEC who have been working without a weekend off since the pandemic began and have watched two of their colleagues die of COVID-19. The agency went from 400 employees to around 1,200 to respond to the pandemic.

VEC just resumed work on a project to modernize its 36-year-old information technology system after pausing the initiative for the pandemic. The new system is expected to begin operating by the end of the year, so the VEC’s call centers can communicate directly with the data system.

“There’s just a lot of challenges,” Healy said.

Virginia lawmakers generally recognize the magnitude of those challenges for the VEC, but they want the problems solved.

“It’s not about a blame game,” McPike said. “It’s about getting a fix for the problem.”

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