Virginians Allege 'Gross Failures' Delayed Pandemic Benefits

By Dorothy Atkins
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Law360 (April 15, 2021, 3:44 PM EDT) -- A group of Virginians hit the state's employment commission with a proposed class action in Virginia federal court Thursday, alleging the commission's "gross failures" and unconstitutional bureaucratic delays have denied them much-needed unemployment benefits during the pandemic.

In a 30-page complaint, a group of plaintiffs — Ashley Cox, Emily Dimond, Penny Williams, Amber Dimmerling and Lenita Gibson — allege that tens of thousands of Virginians have been waiting for months to learn if their unemployment benefits requests have been processed, despite federal rules requiring the state to determine eligibility within 21 days, and that others who have received unemployment had their benefits abruptly cut off without notice or explanation.

The benefits include both state unemployment benefits as well as "significant" federal aid from recent nationwide COVID-19 stimulus packages, like the $600 weekly unemployment payments, the suit says.

"The Commonwealth's refusal to construct a process to ensure that these benefits promptly get to those who need them denies Virginians the promise of these federal commitments," the lawsuit says.

Virginia's unemployment system was created during the Great Depression and is tasked with providing cash assistance to workers as quickly as possible after they lose employment, according to the complaint.

But the state's unemployment commission has determined eligibility in only 2% of cases in a timely manner, and overall Virginia ranks 53rd out of 53 U.S. jurisdictions in determining certain basic eligibility issues according to recent U.S. Department of Labor data, the suit says.

"News reports indicate that as many as 90,000 people have filed initial claims with VEC and are stuck in a limbo status: they have not received benefit payments, they have not received information about their benefit claims, and they have not even received a deputy determination denying benefits (which they could appeal)," the complaint says.

The suit alleges that the delays have disproportionately impacted the most vulnerable populations, including Virginia's Black community, and that the commission's conduct violates their due process rights under the 14th Amendment, as well as the Social Security Act, its regulations and state statutes governing unemployment benefits.

The lawsuit seeks to certify two classes of Virginians. One proposed class is made up of individuals who applied for unemployment benefits in August, October or November and who haven't yet received benefits or who have been denied benefits. Another proposed class consists of individuals who began receiving unemployment benefits last March and April, but whose benefits later ended without explanation.

The sole defendant named in the lawsuit is Virginia Employment Commissioner Ellen Marie Hess.

Lenita Gibson, a named plaintiff in the lawsuit, said in a statement Thursday that she became homeless for roughly four months after she was cut off from benefits and that although she now has a roof over her head, she hasn't been able to find a job.

"The financial loss has been tremendous, and emotionally, you are just a wreck," she said. "It's been horrible. Never in my wildest dreams did I think I'd be treated like this. It doesn't make any sense."

Another named plaintiff, Ashley Cox, said she's filed unemployment claims every week for more than five months and has received nothing.

"I've emailed and called the VEC repeatedly and — when I could finally get a hold of a person — I just get told to wait," she said. "My family has had to go on public assistance to survive. It has been so stressful."

Pat Levy-Lavelle, an attorney at the Legal Aid Justice Center — one of multiple nonprofits representing the plaintiffs — said Thursday that they've been trying to work with the VEC for months, but their suggestions have been rebuffed.

"Virginians deserve better than being absolutely last in the country," Levy-Lavelle said.

A representative for the commission declined to comment Thursday.

The plaintiffs are represented by Craig C. Marchiando, Leonard A. Bennett and Amy Austin of Consumer Litigation Associates PC, Steven Fischbach of the Virginia Poverty Law Center, Brenda Castaneda, Patrick Levy-Lavelle and Granville Warner of the Legal Aid Justice Center, Daniel Turczan of Legal Aid Works and Kristi Cahoon Kelly, Andrew J. Guzzo and Casey S. Nash of Kelly Guzzo PLC.

Counsel information for Hess wasn't immediately available Thursday.

The case is Ashley Cox et al. v. Ellen M. Hess, case number 3:21-cv-00253, in the U.S. District Court for the Eastern District of Virginia.

--Editing by Daniel King.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

Cox et al v. Hess


Case Number

3:21-cv-00253

Court

Virginia Eastern

Nature of Suit

Labor: Other

Judge

Henry E. Hudson

Date Filed

April 15, 2021

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