November 2020 – Plaintiffs’ counsel sends letter to the VEC, requesting resolution for people waiting on benefits, and for people who lost benefits without due process.  Letter describes steps that other states have taken to speed up processing, such as hiring contract adjudicators to help make decisions.

December 2020 – The VEC resumes payments to some people who lost benefits without due process.

April 15, 2021 – Plaintiffs file suit.  Some plaintiffs are people waiting on benefits, and others are people who lost benefits without due process.

May 25, 2021 – Following mediation by Judge Hudson, Judge Hudson enters an order, implementing terms that have been discussed by the parties.  The order requires the VEC to greatly expand adjudications, resume payments to additional people who lost benefits without due process, move certain people ineligible for regular UI to Pandemic Unemployment Assistance, and take additional steps.  The order effectively pauses active litigation, in favor of dialogue between the parties toward system improvements.

August 25, 2021 – Judge Hudson issues an order recognizing that Virginians are still hurting, and directing the parties to discuss additional benchmarks for the VEC to meet.

November 5, 2021 – Plaintiffs and the VEC file a joint status report, listing additional benchmarks for the VEC to meet.  These include deciding newer cases that are unpaid and waiting on adjudication, setting up a process for people stuck for alleged fraud to clear those issues, and information-sharing.

January 4, 2022 – At the direction of Judge Hudson, the parties file a joint order dismissing Cox v. Hess.  The parties remain committed to the November 2021 benchmarks, and will continue dialogue on ways to make system improvements. 

UPDATE: Judge Hudson directed the parties to file a joint order dismissing Cox v. Hess, which the parties did on January 4, 2022. 

The parties remain committed to the November 2021 benchmarks, and will continue dialogue on ways to make system improvements.

UPDATE: On November 5, 2021, based on a prior order from Judge Henry Hudson, the parties filed a document together.  The document – called a joint status report – lists a number of issues that the VEC needs to work on.

These issues include:

·       Claims that were unpaid and waiting on deputy adjudication.

·       Freezes for alleged fraud.

·       Information-sharing.

On May 25th, 2021, Judge Henry Hudson, of the U.S. District Court, Eastern District of Virginia, signed an order detailing the steps required of the VEC to end the backlog of unpaid unemployment insurance claims and to identify and pay Virginians whose benefits were improperly terminated while their cases awaited adjudication. These delays meant that claimants often waited many months, some even since the beginning of the pandemic last year, to receive this financial lifeline after losing their livelihood. In May 2021, the VEC was ordered to resolve substantially the entire backlog within the next 100 days. 

This order paused the proposed class action lawsuit filed April 15 by the Legal Aid Justice Center, Legal Aid Works, and the Virginia Poverty Law Center, along with Consumer Litigation Associates, PC, and Kelly Guzzo, PLC, while the VEC worked to implement these desperately needed reforms and upgrades.

The order went into effect immediately and required the VEC to: 

• • Ensure the elimination of the VEC adjudication backlog before September 6, 2021 (Labor Day). 
  • Accelerate the adjudication of claims to 10,000 cases weekly by July 1, 2021, and 20,000 cases weekly by August 1, 2021. 
  • Quickly and immediately process adjudications for many applicants who are covered by Pandemic Unemployment benefits but have had to first await adjudication. 
  • Identify and resume payments to those claimants who had been getting benefits but were improperly cut off. 
  • Require state identification and better coordination of various alternate housing, food, and income benefits available to applicants in financial difficulty. 
  • Subject the VEC’s new performance standards and deadlines to judicial supervision and require weekly information sharing to make that possible.  

Getting to this point took the effort of countless Virginians who reached out to our organizations and other legal aid organizations; to our Pro Bono partners that helped bring this litigation; to other service organizations across the state; to their elected officials; to the VEC; and to the Governor—demanding change. We thank the named plaintiffs in this lawsuit for stepping forward to help so many others. We were grateful to see the Governor and VEC acknowledge the magnitude of these issues and recognize that patience is no longer an option for Virginians who have been waiting months for a chance at getting unemployment benefits to keep their families afloat. Lastly, we give special recognition to Judge Henry Hudson for so quickly acting to demand immediate improvements by the VEC.  

While this order was a significant step towards fixing a broken system, it did not address every issue identified by those who have contacted us seeking help. And while the timeline for relief provided is as aggressive as possible, we recognize that many Virginians were or are still hurting. Our hope was that these measures would bring relief as quickly as possible to those who continue to struggle to access the unemployment benefits they so desperately need, and they did for many thousands of Virginians.  

Judge Hudson directed the parties to file a joint dismissal order, which the parties did on January 4, 2022.  Judge Hudson indicated that he believed that Cox v. Hess had achieved all it could do, on the specific issues raised in the case.

Cox v. Hess achieved historic gains for Virginians waiting for unemployment during the pandemic.  The case expedited deputy decisions on hundreds of thousands of cases, in the summer in 2021.  It restored benefits to at least 50,000 people – and likely significantly more – who had been cut off benefits without due process, with more than $200 million (and likely much more) restored to these Virginians.  It helped Virginia adopt policies to assist Virginians frozen unjustifiably for inaccurate fraud allegations against them, or for fraud committed against them by others.  It also helped shine a spotlight on the unemployment insurance crisis in Virginia, built media and public pressure, and encouraged the state to look toward additional reforms.

Of course, Cox v. Hess tackled only certain issues.  Plaintiffs’ counsel is well aware that many claimants still are hurting or are experiencing issues in dealing with the VEC.     

Hundreds of thousands of Virginians got relief as a result of the May 25 order. For example, for those waiting for deputy adjudications, the VEC was ordered to issue at least 10,000 adjudications per week by July 1, and at least 20,000 per week by August 1. The VEC was also ordered to effectively eliminate the backlog of claims waiting for deputy adjudication by Labor Day.  Many others have gotten relief as a result of the November 2021 benchmarks agreement.  For example, the VEC committed to processing nearly all of the unpaid cases waiting deputy adjudication.  It also has been setting up a process for people stuck due to false fraud allegations (or fraud on their accounts caused by other people) to request expedited review of those issues.  

However, if you need assistance with your individual claim, your local legal aid office may be able to provide information and support. For more information, click here. (The Legal Aid Justice Center is usually unable to provide individual representation or assistance at this time, because our resources have been focused on systemic change.)

We still welcome hearing your stories. Your stories helped us to identify the systemic issues that we challenged in this lawsuit, and we know that there are more problems with the VEC that should be addressed. Your stories also help us in checking the VEC’s progress in meeting their obligations under the court’s order.  

Cox, et al. v. Hess was a case in which we proposed two classes.  This case sought to fix two problems shared by people seeking unemployment benefits from the Virginia Employment Commission (“VEC”):

• “Continued claims class” Some people were getting unemployment (including regular UI, PUA, or another related program).  Then, their benefits were cut off by the VEC without any notice or hearing before a VEC deputy, because of some kind of “issue” on their claim.  (Most often, this issue is about how their job ended, or whether they refused a job offer.)  Starting in December 2020, the VEC restored benefits to some of these people.  However, there were still many people who were still waiting for their benefits to get restored.  Additional people were restored in April 2021, June 2021, or later, based on the work in Cox v. Hess.
• “Delay class” Some people applied for unemployment (including regular UI, PUA, or another related program), and were not gotten benefits or even a decision denying benefits.  They waited long periods of time for a VEC deputy to review their application for benefits because of some kind of “issue” on their claim.  Due to the advocacy in Cox v. Hess, nearly all people still waiting on deputy adjudication beyond a short time are claimants who have been getting benefits while they wait, based on the “continued claims” requirement.   

A class action lawsuit is a case that seeks to fix a legal problem shared by a group of people (the class) by filing a single case. In most cases, it is a more efficient way of fixing the problem than by filing several lawsuits over the same problem. Named plaintiffs are people who share their experience as examples of the problem experienced by the group. A judge must approve the case to become a class action.

Cox v. Hess never had classes certified or denied.  Instead, Judge Hudson facilitated a process and issued orders that set up system improvements that helped thousands of Virginians trying to navigate the unemployment insurance system.

This case was based on due process claims under the Constitution; a federal law that requires payment of unemployment benefits “when due”; and a Virginia law that requires that applications for unemployment be “promptly” evaluated by a deputy.

This case asked the court to require that the VEC restore benefits to “continued claims class” members, and that the VEC promptly examine and decide (adjudicate) the claims of “delay class” members. 

Since the original filing, we negotiated with the VEC, and Judge Hudson issued orders requiring the VEC, to take additional steps to fix Virginia’s unemployment insurance system for Virginians who have been waiting for answers and for benefits.  

You did not need to sign up to participate.  There were five plaintiffs listed by name in the lawsuit.  However, the case was designed to tackle problems experienced by large groups of people.  People did not need to sign up or “opt in” to the case, to be covered by the system improvements that the Cox v. Hess prompted.

Yes.  Cox v. Hess was designed to increase the number of people whose problems with the VEC were resolved.  For example, hundreds of thousands of Virginians got expedited deputy hearings in 2021, and ten of thousands of people got benefits (that had been taken away without due process) restored.  Others who had been stuck improperly for alleged fraud or for PUA document questions got their benefits restored.  Other Virginians saw other kinds of relief.

Of course, Cox v. Hess tackled only certain issues.  Plaintiffs’ counsel is well aware that many claimants still are hurting or are experiencing issues in dealing with the VEC.     

Although you don’t need to (and can’t) sign up, you can share your experience stories with Virginia’s unemployment system.  (We especially welcome hearing from people who may be members of the “continued claims” or “delay” classes.)   Your stories will help us better understand what is happening, and fight for change. Please click here to share your story. 

While our lawsuit addressed two major problems people have had with the VEC, we are aware that people are struggling with many other problems with the VEC regarding their unemployment insurance claims. The Legal Aid Justice Center generally is unable to provide individual representation or assistance at this time, as our resources have been focused on systemic change. Your local legal aid office may be able to provide more information and support for your issue. You can look up your local legal aid office here.

We would like to hear your story to help track issues with the VEC that we may not be aware of. If you are interested in contributing, please fill out the form here.