This worker received unemployment benefits; Virginia wants them back
Abingdon, Virginia. For 26 years, Ernest Ray worked for a company in southwest Virginia that made compressors, a physically demanding job that included night shifts on the factory floor. When the factory closed in 2018, Ray applied for and received $9,000 in unemployment benefits.
Three years later, Ray fights the Virginia Employment Commission in court as the agency attempts to recover the money. It’s a case, as Ray’s free lawyer sees it, that illustrates the ethos of a radically dysfunctional agency.
said Hugh O’Donnell, who has struggled with decades of unemployment and compensation work.
The agency has come under scrutiny over the past year and a half for a response that by some measures has been among the worst in the country to increase unemployment claims due to the coronavirus pandemic. But cases like Ray’s, interviews with lawyers and a state audit show that the agency was plagued by a wide range of problems for years before the pandemic. They were put to the fore when hundreds of thousands of workers suddenly needed help.
Republican-elect Glenn Yongkin campaigned on a promise to reform the agency, and Virginia Secretary of Labor Megan Healy, whom she now oversees, says some of the problems are structural. She says the agency has long been under-resourced thanks to a complex federal funding formula that pays less when the economy is strong and also penalizes the agency’s inefficiency. External reviews warned of problems going back nearly a decade, including key records management issues, low employee morale and unclean facilities.
During the pandemic, the agency defaulted on setting up certain benefit programs and allowed a backlog of cases, which led to a class-action lawsuit. An IT modernization project eight years behind schedule has exacerbated the situation, leaving claimants dependent on physical mail and call centers that a recent audit found still only respond to 12% of calls.
The review found that Virginia, which enjoys relatively limited benefits, also has very low recipient rates among the unemployed — with the third lowest average rate in the country over the past two decades.
“The system just broke. There’s no other way to describe it,” said Martin Wagbright, director of litigation at the Central Virginia Legal Aid Society.
President Joe Biden’s administration said the pandemic has exposed long-standing challenges to the nationwide unemployment insurance system, and that it needs an overhaul.
For Ray, the struggles with the agency began before she was overwhelmed by allegations of the pandemic.
Ray, who has been deaf since birth, has spent decades making complex machines at Bristol Compressors. During his shifts, Ray said in an interview with his translator niece, he wore safety glasses, gloves, an apron, and steel-toed shoes that sometimes got heavier when you drank coolant.
A former colleague, David Woodring, described him as a “gentleman” and honest “a man of first class” who never missed a job and did a job that required a great deal of skill.
Ray was earning about $36,000 a year in his last year at the company, which closed despite receiving millions in taxpayer-funded incentives. Ray paid him $378 a week for 24 weeks, according to his case records.
Ray, aged 57 with well-worn hands and a big white beard, began receiving these benefits without a problem, began looking for a new job and, in the meantime, had driven about 30 miles (48 kilometres) each way to the Bristol Employment Commission office for compliance employment law. Documentation requirements for weekly job search for the state. He did not have a computer to do paperwork online.
When his benefits ran out in May 2019, employees directed him with unclear reasons to continue reporting job search details. Ray then missed a week due to a minor illness. After filing a doctor’s note, he received a notification that he was deemed unable to work – the applicant must be eligible to work to receive benefits – for “medical reasons” and received his payment in error. The state wants money.
None of that makes sense, said O’Donnell, the former CEO of the Legal Aid Clinic. The doctor’s note, contained in the lengthy case file, explicitly stated that Ray was not incapacitated.
Ray appealed, but did so three weeks later, according to his lawsuit. He was only fluent in American Sign Language, and had trouble reading the small text of the agency’s notice and understanding the bureaucratic language.
Since then, Ray’s case has been making its way through the hiring committee’s appeals process. At each stage, the state fought him on the basis of his belated appeal, not on the merits of the case. O’Donnell said the commission never explained its reasons for asking for reimbursement, and he blamed Ray at one point for an alleged lack of diligence.
Committee spokeswoman Joyce Fogg declined to comment on the specifics of the case. A spokeswoman for Attorney General Mark Hering declined to comment on the lawsuit.
Labor Secretary Healey and top Commission officials have defended the work of agency staff, who have faced an unprecedented surge in demands amid the pandemic, changing federal guidance and confrontations, including death threats, from angry individuals.
Despite an outpouring of complaints about the commission, state officials have so far shown little willingness to push for sweeping reforms.
A harsh review released by a monitoring agency this month made 40 recommendations for changes and the administration of outgoing Democratic Governor Ralph Northam erred in waiting too long to address problems as claims about the pandemic mounted. It also noted the weakness of oversight by the Federal Ministry of Labor and urged the General Assembly to do more.
Yongkin, who took office in January, has promised reforming the agency will be a top priority, but has yet to reveal any details about where it will begin.
Ray and his niece say he hasn’t been able to find another job, largely because of his deafness. He now receives Social Security disability benefits that began after his unemployment benefits expired.
He said he does not have the money to pay the state and is constantly concerned about his case.
“I lost my job and then it feels like something that should have been there to help me find something else that just turned into an even bigger mess,” he said.
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