Summary of unemployment law in Virginia: I was fired, am I entitled to Unemployment Benefits in Virginia?
Unemployment Benefits are provided by the legislature under specified conditions. The statutory provisions are found in Title 60.2 of the Code of Virginia. Beginning at § 60.2-100.
The court in Francis v. Va. Empl. Comm’n, 59 Va. App. 137, 143-145 (Va. Ct. App. 2011), provided a good overview and summary of the law. The information that follows is taken from that case with a few minor modifications:
Under the Act, “‘[t]he legislature intended unemployment benefits to be paid only to those who find themselves unemployed without fault on their part.‘” Va. Empl. Comm’n v. Cmty. Alternatives, Inc., 57 Va. App. 700, 704, 705 S.E.2d 530, 532-33 (2011) (quoting Va. Emp’t Comm’n v. Trent, 55 Va. App. 560, 568, 687 S.E.2d 99, 103 (2010)). Nevertheless, since the Act is remedial in its purpose, id. at 708, 419 S.E.2d at 282 (citing Israel, 7 Va. App. at 172, 372 S.E.2d at 209), “[e]ven employees who are fired for what the employer considers good cause may be entitled to unemployment compensation,” Blake v. Hercules, Inc., 4 Va. App. 270, 273, 356 S.E.2d 453, 455, 3 Va. Law Rep. 2620 (1987). Thus, “‘the statutory term “misconduct” should . . . be construed in a manner least favorable to working a forfeiture so as to minimize the penal character of the provision by excluding cases not clearly intended to be within the exception.'” Piggly Wiggly, 14 Va. App. at 707-08, 419 S.E.2d at 282 (quoting 76 Am. Jur. 2d, Unemployment Compensation § 77 (1992)).
“‘Furthering this policy goal, Code § 60.2-618(2)(a) prohibits benefits if the Commission finds such individual is unemployed because he has been discharged for misconduct connected with his work.'” Cmty. Alternatives, 57 Va. App. at 704, 705 S.E.2d at 532-33 (quoting Trent, 55 Va. App. at 568, 687 S.E.2d at 103). [A]n employee is guilty of “misconduct connected with his work” when (1) he deliberately violates a company rule (2) reasonably designed to protect the legitimate business interests of his employer, or (3) when his acts or omissions are of such a nature or so recurrent as to manifest a willful disregard of those interests and the duties and obligations he owes his employer. Branch v. Virginia Employment Commission, 219 Va. 609, 611, 249 S.E.2d 180, 182 (1978) (emphasis in original). “‘The Branch definition of misconduct has two prongs.'” Piggly Wiggly, 14 Va. App. at 705, 419 S.E.2d at 281 (quoting Israel, 7 Va. App. at 173, 372 S.E.2d at 209). “The first prong defines misconduct as a deliberate violation of a company rule.” Id. at 705, 419 S.E.2d at 281. “[T]he second prong contemplates actions or omissions of such a nature or so recurrent as to manifest a willful disregard of the employer’s interests and the duties and obligations the employee owes the employer.” Id. “A forfeiture of benefits will be upheld only where the facts clearly demonstrate ‘misconduct,‘” id. at 707, 419 S.E.2d at 282, and “[t]he employer bears the burden of proving [that] misconduct,” id. at 705, 419 S.E.2d at 280. Once that burden is met, the employee is disqualified for benefits “‘[a]bsent circumstances in mitigation'” ] of his conduct. Id. (quoting Branch, 219 Va. at 611-12, 249 S.E.2d at 182). “‘The burden of proving mitigating circumstances rests upon the employee.'” Id. at 705, 419 S.E.2d at 280-81 (quoting Branch, 219 Va. at 611-12, 249 S.E.2d at 182).
HOSTILE WORK ENVIRONMENT ISSUES:
In deciding whether or not an individual who quits due to a “hostile work environment” will qualify for benefits under workers’ compensation, the court state as follows:
We [have previously] considered the requirement of “good cause” in the context of an employee who voluntarily leaves employment and stated: “Before relinquishing . . . employment . . . the claimant must have made every effort to eliminate or adjust with [the] employer the differences or conditions of which [the claimant] complains. [The claimant] must take those steps that could be reasonably expected of a person desirous of retaining . . . employment before hazarding the risks of unemployment.” In other words, a claimant must take all reasonable steps to resolve . . . conflicts with [the] employer and retain [that] employment before voluntarily leaving that employment. Umbarger v. Virginia Employment Comm’n, 12 Va. App. 431, 434-35, 404 S.E.2d 380, 383 (1991) (citation omitted).
In one case, Smith v. S.W. Rodgers Co., Record No. 0003-99-4, 1999 Va. App. LEXIS 436, at *5-6 (Ct. App. July 20, 1999), the court in applying this law stated that while the record showed that the employee had a legitimate complaint regarding her employment, and that the conduct of her supervisors was deplorable and unacceptable, nevertheless when the employee did not avail herself of the established grievance policy and attempts by the employer to deal with the hostile work environment, that the record supported the commission’s finding that the employee “voluntarily quit her position without good cause” disqualifying her from receiving unemployment benefits.
DO NOT WAIT UNTIL YOU HAVE LOST BEFORE THE COMMISSION TO HIRE AN ATTORNEY — ON APPEAL TO THE CIRCUIT COURT YOU WILL BE STUCK WITH THE RECORD THAT YOU MADE BEFORE THE COMMISSION!!!!
If you voluntarily quit without good cause you will be disqualified from benefits.
For the complete statute – click here -> §60.2-618
n2 Code § 60.2-618 provides: An individual shall be disqualified for benefits upon separation from the last employing unit for whom he has worked 30 days or 240 hours or from any subsequent employing unit:
* * * *
2. a. For any week benefits are claimed until he has performed services for an employer (i) during 30 days, whether or not such days are consecutive, or (ii) for 240 hours, and subsequently becomes totally or partially separated from such employment, if the Commission finds such individual is unemployed because he has been discharged for misconduct connected with his work.(Emphasis added.)
SAMPLE PETITION TO CIRCUIT COURT FILED IN THE CIRCUIT COURT WITHIN 30 DAYS OF THE DATE OF THE ADVERSE DECISION (NOT FROM THE TIME THE EMPLOYEE RECEIVED IT)– USE OF THIS FORM DOES NOT CREATE AN ATTORNEY CLIENT RELATIONSHIP AND THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED!
————sample petition appealing denial of unemployment benefits
by the full Virginia Employment Commission————-
IN THE CIRCUIT COURT FOR THE CITY OF RICHMOND
[NAME OF EMPLOYEE]
v. Case No.
VIRGINIA EMPLOYMENT COMMISSION
[NAME OF EMPLOYER]
Serve Registered Agent:
PETITION – APPEALING ADMINISTRATIVE DECISION
OF THE VIRGINIA EMPLOYMENT COMMISSION
Comes now [NAME OF EMPLOYEE], hereinafter “Employee” and petitions this court, appealing the adverse decision of the Virginia Employment Commission in denying unemployment benefits, and states as follows:
- The Virginia Employment Commission denied unemployment benefits to Employee on [date of decision]. This petition is filed within 30 days of that date.
- Employee was employed with [Name of Employer] from ___ to ____.
- Employee’s employment with Employer did not end due to misconduct at work, as Employee did not deliberately violate a company rule reasonably designed to protect the legitimate business interest of the Employer and/or Employee’s acts or omissions are not of such a nature or so recurrent as to manifest willful disregard of those interests and duties and obligations owed by Employee to Employer.
- Employee did not voluntarily quit or resign, and if subjected to a hostile work environment, before relinquishing employment the Employee made every effort to eliminate or adjust with the Employer the differences or conditions of which Employee complained. Employee took those steps that could be reasonably expected of a person desirous of retaining employment before hazarding the risks of unemployment. In other words, Employee took all reasonable steps to resolve conflicts with the Employer and retain that employment before voluntarily leaving that employment. [if applicable… In fact, the Employer reached a resolution with Employee of the conflict, but required as a condition of that resolution that Employee no longer be employed by Employer.]
- The Commission as the factfinder was charged with the responsibility of resolving both questions of controverted facts and questions of credibility, but the evidence in the record does not support the Commission’s findings of facts, namely:
- [explain how the record does not support the Commission’s finding-—this is not a place where you simply disagree, you must show how the Commission could not reach the conclusion it did based upon the record]
- eg. The Commission determined that Employee voluntarily resigned or quit, but the record shows that the work environment was so hostile that the Employee could not reasonably be expected to stay at work and further the Employer reached a resolution with the Employee that expressly precluded Employee from being employed by Employer.
Wherefore Employee petitions the Circuit Court to reverse the decision of the Virginia Employment Commission and to find that Employee was not terminated for misconduct at work and/or did not voluntarily quit or resign.
[NAME OF EMPLOYEE]
[NAME OF EMPLOYEE]
The materials are prepared for information purposes only. The materials are not legal advice and you should not act upon the information without seeking the advice of an attorney. Nothing herein creates an attorney-client relationship.