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## § 60.2-528.1 – Charging of benefits relating to certain overpayments; penalty for pattern of failure to respond to requests for information

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A. As used in this section, unless the context requires a different meaning: “Employer,” with regard to the timeliness and adequacy of responses, includes an agent of the employer used by the employer to respond to the Commission on the employer’s behalf; however, an employer’s agent’s failure to respond timely or adequately to requests for information with regard to claims involving the agent’s other clients shall not be used in determining whether the employer has established a pattern of failing to respond timely or adequately to written requests for information. “Erroneous payment” means a payment of benefits under this title made prior to a determination by the Commission that the claimant is not eligible or qualified for the benefits paid. “Information relating to a claim” means information material to a determination or decision by the Commission relating to the payment of benefits under this title, including separation information and information required by the Commission for the establishment of a claim for compensation and information about wages, days, and hours worked. “Review period” means the 48 consecutive calendar month period ending on the June 30 that precedes the Commission’s next annual calculation of the employer’s benefit ratio pursuant to subdivision A 1 a of § 60.2-530. “Written request” includes a request sent electronically.

B. An employer’s account shall not be relieved of charges relating to an erroneous payment if the Commission determines that the employer has failed to respond timely or adequately to a written request by the Commission for information relating to the claim and the employer has established a pattern of failing to respond timely or adequately to written requests by the Commission for information relating to claims.

C. For purposes of this section, an employer’s response to a written request by the Commission for information relating to a claim shall be deemed not to be:

1. “Adequate” if it fails to provide sufficient material facts to enable the Commission to make a correct determination regarding a claim for benefits; however, (i) a response shall not be deemed inadequate if the Commission failed to request the necessary information or if information is provided in a format other than as requested, provided that the information is capable of being read by the recipient, and (ii) there shall be a rebuttable presumption that an employer that participates in a fact-finding interview or responds fully to the questions set out on the written request for information has provided an adequate response; or

2. “Timely” if it is not made within 10 calendar days after the delivery or mailing of the Commission’s request for information.

D. An employer shall be deemed to have established a pattern of failing to respond timely or adequately to written requests for information relating to claims if the Commission determines that the employer has failed to respond timely or adequately to a written request for information relating to a claim on three or more occasions within the applicable review period. The Commission shall not find that an employer has established a pattern of failing to respond timely or adequately to written requests for information relating to claims unless the Commission has provided the employer with the notices required pursuant to subsection E. The Commission shall include in any written request for information from an employer notice of (i) the deadline to provide a timely response, (ii) the requirement to provide an adequate response, and (iii) the consequences of such employer’s failure to provide such timely and adequate response.

E. The Commission shall provide the employer with a written notice following each instance in which the employer fails to respond timely or adequately to a written request for information relating to a claim. Each such notice shall be electronically delivered, including delivery through the Employer Self-Service Tax System website maintained by the Commission, or mailed to the employer and shall advise the employer of the implications of the employer’s failure to respond timely or adequately to written requests for such information. The Commission shall (i) provide employers who are not registered for a State Information Data Exchange System E-Response or System Integration Account in Virginia with the option to elect delivery of such notices to a designated mailing address and (ii) ensure such notices are delivered to a physical or electronic mailing address customarily used by the employer’s designated attorney or authorized representative for unemployment insurance claim matters.

F. 1. Upon the Commission’s second determination within the applicable review period that an employer failed to respond timely or adequately to a written request for information relating to a claim, the Commission shall assess upon the employer a civil penalty of $100. A copy of the notice of assessment of a civil penalty shall be delivered or mailed to the employer with the notice of the employer’s second such failure as required pursuant to subsection E. Civil penalties collected pursuant to this subsection shall be paid into the Special Unemployment Compensation Administration Fund established pursuant to § 60.2-314. The Commission may compromise, settle, and adjust any such penalty as authorized by § 60.2-521.

2. Upon the Commission’s third determination, and for each subsequent determination, within the applicable review period that an employer failed to respond timely or adequately to a written request for information relating to a claim, the employer shall be considered to have waived all rights in connection with the claim, including participation and appeal rights otherwise available pursuant to Article 5 (§ 60.2-619 et seq.) of Chapter 6, unless the employer demonstrates to the Commission that good cause exists for such failure.

G. An employer shall not be found to have failed to respond timely or adequately to a written request by the Commission for information relating to a claim if the Commission finds good cause for such failure. The Commission may not find good cause for an employer’s failure to respond timely or adequately to such a written request unless the failure is due to compelling and necessitous circumstances beyond the employer’s control. The Commission shall find good cause for an employer’s failure to respond timely or adequately to such a written request if the employer demonstrates that the Commission (i) did not deliver such request to the physical or electronic mailing address specified in writing by the employer for unemployment insurance claim matters or (ii) did not deliver such request to the employer’s designated attorney or authorized representative for unemployment insurance claim matters.

H. If the Commission has determined that an employer has established a pattern of failing to respond timely or adequately to written requests for information relating to claims, such determination shall remain in effect until the end of the applicable review period. Any benefit charges for an erroneous payment that the Commission has determined are not to be relieved from the employer’s account pursuant to subsection B shall remain chargeable to the employer’s account through the period ending on the fourth June 30 following the Commission’s determination.

I. The costs of benefits charged to any governmental entity, Indian tribe, or nonprofit entity that is a reimbursable employing unit under this title shall not include any credits of benefit overpayments actually collected by the Commission if the Commission finds that the entity or its agent was at fault for failing to respond timely or adequately to a written request for information relating to a claim and the entity or agent has established a pattern of failing to respond timely or adequately to such requests.

J. If the erroneous payment results from a combined-wage claim, the determination of noncharging for the combined-wage claim shall be made by the paying state. If the response from the employer does not meet the criteria established by the paying state for an adequate or timely response, the paying state shall promptly notify the transferring state of its determination, and the employer shall be appropriately charged.

K. This section applies to erroneous payments established on or after July 7, 2013.