The Virginia Unemployment Compensation Act, codified in Virginia Code § 60.2-100 et seq., provides for unemployment benefits under specified conditions.  The Virginia Employment Commission (“VEC”) oversees unemployment benefits in Virginia.

An employee that was fired, terminated, or released from an employer is not automatically entitled to unemployment benefits.  The Virginia Unemployment Compensation Act “…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 (2011) [citation omitted].

Virginia Code § 60.2-618 outlines six ways an individual can be disqualified from receiving unemployment benefits:

1. Leaving the employer “voluntarily without good cause”;
2. Termination for “misconduct connected with [the] work”;
3. Failure to apply for or accept suitable work without good cause;
4. Made a false statement in the past 36 months to obtain benefits;
5. Termination related to an “unlawful act which resulted in a conviction”; or
6. Termination was a “condition of the individual’s parole or release from a custodial or penal institution and such individual was participating in the Diversion Center Incarceration Program pursuant to § 19.2-316.3”

If an individual did any one of the above-mentioned items then the individual is disqualified from receiving unemployment benefits in Virginia.

This posting will focus on #2, so the relevant questions becomes how is “misconduct” defined?

“[T]he 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.”  Kennedy’s Piggly Wiggly Stores, Inc. v. Cooper, 14 Va. App. 401 at 707-08 (1992) (quoting 76 Am. Jur. 2d, Unemployment Compensation § 77 (1992)).  In other words, misconduct should be defined in a way favorable to the terminated individual seeking benefits.

In Francis v. Virginia Employment Commission, 59 Va. App. 137, 143-145 (Va. Ct. App. 2011), the court outlined the definition of misconduct and corresponding burden of proof:

[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 v. Virginia Employment Comm’n, 7 Va.App. 169, 173, 372 S.E.2d 207, 209 (1988)).  “The first prong defines misconduct as a deliberate violation of a company rule.”  Id.  “[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).

In other words, there are two types of misconduct:

1. A deliberate violation of employer’s rule that is designed to protects legitimate business interests, so an individual must have known about the rule or been warned about a rule and failed to remedy the conduct; or
2. Acts or omissions, one-time or recurrent, that demonstrate willful disregard of (a) the employer’s interests; and (b) “the duties and obligations the employee owes the employer.”  This may include: lack of confidentiality or honesty or loyalty or interest in the employer, insubordination, intoxication, multiple garnishments, and/or poor attendance.

If misconduct as described above is found, the misconduct may be excused if an individual can show mitigating circumstances that could include:

1. The misconduct was condoned by the employer because (a) the employer knew the misconduct was occurring but did not stop it; or (b) the employer gave the employee instructions to commit the misconduct;
2. The employee was provoked into the misconduct; or
3. Unequal application of the rule because (a) other employees engaged in identical behavior and were not sanctioned; or (b) the employer engaged in identical behavior.

Even if an individual has done nothing to be disqualified and may have already begun receiving benefits, the individual may be required to attend a hearing before the VEC.  If a hearing is required, the individual will receive a letter titled “Claimant Notice of Telephonic Fact-Finding Interview.”

To ensure that these benefits are only distributed to qualified individuals, the VEC conducts hearings by deputy examiners to ensure that the unemployed applicant qualifies for benefits.  Specifically, the VEC is gathering facts to determine “whether or not you were discharged or suspended for misconduct” based on the above-mentioned definition.

If you have received notice about a VEC hearing or would like to discuss representation, please contact Steven Krieger Law, PLLC for a consultation.