Unemployment Benefits in Virginia: Do I Qualify Since I was Fired?

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.

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26 Responses
  1. I was diagnosed with a rare case of Ramsey Hunt Syndrome on 1/29/2021. I filed for unemployment, and fought since April to get benefits, due to being terminated 4/22/2021. I received a letter from VEC today saying that I owed them money back, paid from 2/2021-4/2021. Can someone please explain why this happened ??

  2. I’m not sure but my job fired me and used some thing cause the COVID-19 act which i was fired. Do i have some case on this cause i have filed benefits and i still haven’t received anything. I tried calling the office to no avail. I was fired something around the first of the year 2021.

  3. So I was fired about two weeks ago for something I wasn’t involved in. My girlfriend got into a argument with a temp. She goes to supervisor He moves her. Brings her back after lunch everything fine take break and go in she is going to office because people saying she threatened him . They escorted her out of building. Tells her someone will let me know if she has a job still or not. My supervisor comes and gets me because she is standing outside in the dark and rain. He tells me he will see me tomorrow. Next morning I get a txt from HR saying I’m under investigation also. I didnt have nothing to do with it . Her supervisor told high up that I was a ticking time bomb and they let me go also. Can they do that? Can I do something about it? Can she or I draw unemployment ? Because they never told her if she was fired or let go.

  4. I have a question. I believe my employer is trying to fire me. I was on a 4 month leave due to Covid and a heart valve replacement. I’ve been back 2 days and the managers and HR are treating me very nasty. I came back with a Dr note that for 1 month my shift couldn’t be longer than 4 hours and I couldn’t lift more than 20lbs. Today my 2nd day back, I took my 15 minute break and was in the office trying to get into the program for my schedule. I was having a problem changing my password. I didn’t realize I went over by 10 minutes on my break. The manager came charging in accusing me of taking 40 minutes for my break. We disagreed. I asked the girl who covered me to tell the Manager what time she came to relieve me. When it was time for me to leave the manager called me into the office and informed me she had to write me up. I asked her if she and I could speak human to human and she wouldn’t respond. I told her in the year that I’ve been there I have tried to have a good relationship with her but she ignores me. I had been in the store a few days earlier and said hello to her, she turned her head and kept walking. I feel you are purposely trying to find a reason to fire me. You refuse to have a conversation. So do what you “need to do”.. I got up and left. Do I report this to corporate HR?

  5. I received my unemployment benefits letter under the CARES Act. I was deemed eligible under my previous employer and had to file my weekly benefits claim on VEC. I sent a email prior to recent of benefits and a reply on VEC Dashboard. My letter said I would receive an extra $600 from 4/4/20 to 7/25/20. I received two payments no back pay. Then I logged in two file my weekly claim and it said I was monetarily ineligible, however; I received no correspondence to that affect. On May 17, 2020 I sent an email with all correspondence attached plus medical verification for because I am under self quarantine, by my doctor; to due to COPD. I also sent a letter by mail to Virginia Employment Commission, Monetary Determinations Unit, Room 200, P.O. Box 26441, Richmond, VA 23218. I have received no correspondence in regards to my [back pay, eligibility, etc. I, like many others have attempted to reach them by live chat. I don’t know what else to do at this point. I am aware they are experiencing problems but the financial consequences for individuals such as myself that are eligible whether under traditional unemployment or as a self employed individual under CARES Act are now in dire straights.

    Everything stated can be verified.

    Thanks for your time and consideration in regards to this matter.

    Sincerely,

    Jerry Kennedy

  6. I was hired 2 weeks a go from a clothing store. I was hired to work weekend. I worked there two weekend only and suddenly the manager change my schedule without notice. I work that weekend and after two days she texts me and told me that I was a not a good fit for the job. And I didn’t came to work and my check was already mail to me What should I do I live in Virginia

  7. I was fired from my job I applied for benefits .. I needed to do something I was getting worried was behind on bills close to eviction so I took a little job been working over a week now not even making half of what I was making don’t even have experience in the field then I found out I was approved for benefits my benefits pays more than the job I took I believe, am I still eligible 8 would like to go to school and provide better for my family

  8. I was recently denied unemployment for absences. The last two days I was out(and reason for termination)were due to an inner ear infection that I had to seek medical attention for. I called in according to procedure and supplied a doctor’s note. The paper I received said they defined misconduct in the case of absences as willful absences without adequate justification. I filed an appeal, what is the likelihood that I’ll win it? It’s also worth noting that when I agreed to the attendance policy, I was told I’d be working 48 hours a week but it became immediately mandatory that I work 60, making it much harder to seek medical attention without missing. And while they did warn me in writing, they skipped multiple steps in accordance with their own policy.

    1. My employment was terminated on 05/18/2018. There reason at the time was that I was not a fit. I have been having issue with a current supervisor that has gone from giving me a position to taking it a way and holding a conversation against me that was told to a higher manager in confidence but revealed to the current supervisor. Just recently work atmosphere has been so stressed that I had a single syncope episode. My supervisor showed little concern and in fact treated me as if I had done something when I returned to work a few days later. When I involved HR to reveal what was happening along with previous incidents that I have witnessed, the tables were turned and it turns out I was being negative and they could only see me reaching a neutral point in my job, but never over to the positive. (the neutral point for me was that I was willing to do my job as I had done for the past year and half to the best of my ability). Since I was not willing to resign with pay (as I had done nothing wrong but report an incident to HR) the head of HR had not other choice, but to fire me. The reason at that time “was not a fit”. 1. Will I qualify for unemployment and 2. Is this worth pursuing legal action against employer? (As of 5/30 I’m still waiting on term letter)

  9. I had 2 jobs in May 2016. I was scheduled for hip replacement on 5/31/2016. My primary employer sent a letter terminating me 6/1/2016. Because I was recovering from the surgery and not working my $50 week part time job I was considered separated from that employer too. I applied for unemployment benefits when I was released back to work. The initial fact finding for the primary job went directly to my voice mail and I was initially disqualified. I appealed that and was determined eligible back to 6/12/2016. The deputy disqualified me from my part time job because I didn’t go back right away when released by my Dr. The drive was too painful with my hip. My employer was OK with the time off. I didn’t quit and wasn’t fired from that job so by the time I got the disqualification I had returned to work. Therefore, I considered it a non-issue. I was back to work…each week I claimed my earnings from there. I kept calling asking about the benefits from my primary job. After weeks of being told to give it time a red finally advised me that the little part time job disqualification was the reason my $230 weekly benefit wasn’t being paid. I immediately appealed. The appeals examiner found I wasn’t “timely”. No where does it indicate that the benefits for one job are dependent on the determination for the other. My appeal stated “claimant is qualified to receive benefits effective June 12, 2016”. Can anyone help, PLEASE? On contingency?

  10. Hi i developed an illness and had multiple call outs .I was working a night shift 11pm-7am I provided Drs notes to HR as they requested I do then the wrote me up a few months back said i had to improve my attendance
    I had biopsies take and sent results to HR so they were well aware i had a heath condition,.Then they let me go terminated filed for unemployment in VA suppose to have meeting in the next few weeks..

    they stated misconduct..I did not wish to be ill. Do i have a case or loosing battle have all my doctors notes etc..

    thanks all
    I have being filing my weekly claim but no payments received.

    Mary

  11. I was terminated on 10/30/2015. I applied received a PIN and submitted for benefits. I received a letter yesterday saying I have a fact finding hearing on 12/11. Will I be able to receive benefits prior to this meeting? My reason for being terminated was due to me not following directions. I do computer work and I was sent an email by my boss on a Friday when I was off. She had looked at two laptops I was working and stated I had missed this and that on them. Asked me to basically redo everything on them on Monday. She was out of the country Monday-Wednesday so I was unable to plead my case on what she was asking. So I made the decision to do them my way which in the end they were correct. When she had originally checked them on the Friday I was off she was unaware that I was not done with them. Well this got blown up to me not being able to follow directions. There was also a second incident prior to this. There was a PC I was working on and I mistakenly did something wrong on it. One of my co workers noticed it on the server and went into cussing like it was the end of the world and asked what happened. Due to his reaction I denied doing what I did so therefor I was dishonest. I was wrote up for both of these incidence and was let go a few weeks later because I was not the right fit. What will the fact finding meeting be like?

  12. Recently fired due to too many absences, most of which were due to back pain caused by my job. The company was very nice about me taking time off and everyone else in the office took advantage of the relaxed atmosphere. I always called in and never was a no-show (like several others.) Without any mention or warning regarding these absences, two weeks ago I arrived at work my boss shook my hand and fired my on the spot. I have a VEC conference call scheduled next month with my employer if he chooses to participate – any advice?

  13. I was fired, my boss said that I had used the internet too much, he is fighting unemployment benefits, my hearing is Wednesday March 4 2015 at 1:30 pm. I never had a warning or he never explicitly or implicitly forbid it. Otherwise my conduct was impeccable. No tardiness or absences. Appreciate your help

  14. Can someone PLEASE HELP. My manager sent a letter in the mail firing me 2 days ago to my parents adress. I DO NOT live there. I quit yesterday. Since i do not live there and do not recieve mail there is it not possible to fire me? Someone please email me officialcarriesheehan @gmail.com if you can help!!!

  15. I have receive a notice from vec on weather or not you were discharged or suspended for misconduct after already receiving my first vec check. The reason my employer let me go cause of my health issues getting in the way of my work time. I never been wrote up, no warnings plus of my health which is many things that is wrong I can’t control I had many family members and close friends who have died and I have no control over but work hard and had a great work relationship with my boss and co workers. My seizures have effect my life which effect my job. Is this fair??

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About the Author

Steven Krieger and guests (lawyers and non-lawyers) will periodically post about topics relevant to his firm and practice areas. Your comments and feedback are always welcome. 

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