RD25 - Commission on Unemployment Compensation Executive Summary of 2015 Interim Activity and Work - January 2016


    Executive Summary:
    I. BACKGROUND

    Chapter 33 (§ 30-218 et seq.) of Title 30 of the Code of Virginia establishes the Commission on Unemployment Compensation (UC Commission). The UC Commission is charged with:

    • Evaluating the impact of existing statutes and proposed legislation on unemployment compensation and the Unemployment Trust Fund;

    • Assessing the Commonwealth's unemployment compensation program and examining ways to enhance effectiveness;

    • Monitoring the current status and long-term projections for the Unemployment Trust Fund; and

    • Reporting annually its findings and recommendations to the General Assembly and the Governor.

    The UC Commission's membership is composed of Senators John Watkins, Donald McEachin, and Frank Wagner and Delegates Lee Ware, Kathy Byron, Riley Ingram, Lionell Spruill, and Joseph Lindsey. Senator Watkins chairs the Commission. Delegate Ware serves as the Commission's vice-chairman.

    The UC Commission met on August 4, 2015, and December 9, 2015. This executive summary of the interim activity and work of the UC Commission is submitted pursuant to § 30-224 of the Code of Virginia and is provided in lieu of an annual report.

    II. ISSUES ADDRESSED

    1. Status of the Unemployment Trust Fund

    The account of the Commonwealth in the Unemployment Trust Fund in the U.S. Treasury (Trust Fund) is composed of state unemployment tax (SUTA) collected from Virginia employers. Virginia employers are assessed SUTA on the first $8,000 of each employee's wages. Moneys in the Trust Fund are used solely for paying unemployment compensation benefits to eligible unemployed Virginians. Since 1982, Virginia has measured Trust Fund adequacy by use of a statutorily prescribed average high cost multiple approach. Section 60.2-533 of the Code of Virginia requires the Virginia Employment Commission (VEC) to determine the "adequate balance" of the Trust Fund as of the end of each fiscal year. The solvency level, measured by dividing this adequate balance by the actual balance in the Trust Fund, is used, with other factors, in determining employers' SUTA rates.

    The Trust Fund's solvency level increased from 40.3 percent on June 30, 2014, to 57 percent on June 30, 2015. The VEC predicts that the Trust Fund's June 30 solvency level will reach 64 percent in 2016 and 70 percent in each of 2017 and 2018. This increase to a solvency level in excess of 50 percent is relevant to employers because the fund builder tax is suspended for years when the solvency level exceeds 50 percent.
    The Trust Fund's December 31, 2015, balance was expected to be $736.9 million; one year earlier, the balance was $448.3 million. The balance in the Trust Fund is expected to maintain its steady growth, with the balance projected to be $1.01 billion on June 30, 2016.

    The average annual SUTA per employee, including the 0.22 percent pool tax and the 0.20 percent fund builder tax, is expected to decline for the next four years, from $186 per employee in 2015 to $151 in 2016, $133 in 2017, $117 in 2018, and $111 in 2019, before edging up to $118 in 2020. The average annual SUTA per employee peaked in calendar year 2012 at $236 per employee. Much of the decline is attributable to the suspension of the fund builder tax for years after 2015 and reductions in the pool tax, which dropped from a high of $42.40 per employee in 2012 to $11.20 in 2015, and is projected to continue shrinking to $5.60 in 2016, $2.40 in 2017, and $1.60 in 2018. The per-employee pool tax is projected to increase thereafter to $4.80 in 2019 and $8 in 2020.

    The increase in the solvency level in upcoming years is expected to occur at the same time that state unemployment tax revenue is declining. In 2015, such revenues are expected to be $671.3 million, which is more than 10 percent less than the $749.9 million collected in 2014. Part of the decline is due to the shift in the distribution of employers' tax rates. The percentage of employers charged the lowest state unemployment tax rate of 0.10 percent (excluding the pool tax) increased to 59.3 percent in 2015 and is projected to reach 60.4 percent next year. Correspondingly, the percentage of employers for whom the tax rates are computed based on the employer's record of benefit charges, rather than assigned based on status as a new employer, delinquent employer, foreign contractor, or other category, at the highest state unemployment tax rate of 6.2 percent has decreased from 9.7 percent in 2014 to 7.3 percent in 2015.

    2. Claims, Unemployment, and Payment Data

    Total initial claims for unemployment benefits for 2015 were projected to be 184,000. This level is less than half of the number of claims filed in 2010. The projected total for 2015 would be the lowest level of claims since 1974. The decline in initial claims through October 2015 was attributed to fewer layoffs in construction and manufacturing.

    Virginia's unemployment rate (not seasonally adjusted) for October 2015 was 4.1 percent, which was the same level as the preceding month. Virginia's seasonally adjusted unemployment rate for October 2015 was 4.7 percent; one year previously, Virginia's seasonally adjusted unemployment rate was 5.2 percent, reflecting a 9.6 percent decline. The seasonally adjusted unemployment rate for October 2015 placed Virginia as the 15th lowest ranking among the states. Virginia's corresponding ranking for October 2014 was 21st lowest.

    The number of final payments, which reflects the number of claimants who received benefits for the maximum number of weeks for which they were entitled (and thus did not return to work while eligible to receive unemployment benefits) in October 2015 was approximately 2,500. Final payments of benefits in the first 10 months of 2015 were down 23.5 percent from the same period in 2014 and down 38 percent from the same period in 2013. The exhaustion rate, which reflects the percentage of unemployment compensation recipients who use up all of the weeks of regular unemployment benefits for which they are eligible, was 41.2 percent in October 2015; in October 2014, the exhaustion rate was 44.6 percent.

    Virginia's maximum weekly unemployment benefit is $378. The national average maximum weekly unemployment benefit in 2015 is $431. While Virginia's maximum weekly unemployment benefit is lower than the national average, it is third-highest among the six jurisdictions composing the area within the Fourth Circuit Court of Appeals. Virginia's weekly benefit replacement rate of 39 percent of the state's average weekly wage is unchanged from 2014. The national average weekly benefit replacement rate is 45 percent. Only one of these six jurisdictions (the District of Columbia) had an average weekly benefit replacement rate in 2015 that is lower than Virginia's rate.

    The average state unemployment tax per employee in Virginia of $210 for 2014 was the lowest of these six jurisdictions. The national average for the same period was $396, and the highest among the six jurisdictions was the $477 assessed in North Carolina. North Carolina's unemployment trust fund balance of $996 million on October 31, 2015, has sharply increased over the past several years. The increase is due in large part to North Carolina's reducing the maximum potential duration of unemployment benefits to 12 weeks. By contrast, the maximum potential duration in four of the six jurisdictions, including Virginia, is 26 weeks.

    3. Employment Data

    The VEC reported that while Virginia's unemployment level is declining, the rate of job growth is below the national average. Senator Watkins observed that the General Assembly will soon receive a proposed budget for the next biennium based on revenue projections that may be difficult to rationalize in light of the actual rates of employment growth. The rate of job growth will significantly affect income tax receipts from both withholding and non-withholding sources.

    The rate of over-the-year growth in nonfarm employment in Virginia exceeded the national rate during the period 2004 through mid-2008 and the rate at which the Commonwealth lost jobs during the period 2008 through 2010 was less than the corresponding national rate. However, since early 2011, the rate of growth in nonfarm employment nationally exceeded the rate in Virginia.

    The VEC's data illustrates the number of persons employed in 2004 and 2014 in the aggregate and by industry. In 2014, the number of nonfarm employees in the Commonwealth totaled 3,774,000; ten years earlier, the total was 3,587,400. The difference of 186,600 represents an increase of 5.2 over the decade. The two industries with the greatest increase in employment are education and health services with 111,400 additional jobs (28.9 percent increase) and professional and business services with 99,100 additional jobs (17.1 percent increase). The two industries with the greatest decrease in employment are manufacturing with 67,100 fewer jobs (22.5 percent decrease) and construction with 53,000 fewer jobs (23 percent decrease), although the greatest percentage decrease was information services, where a reduction of 27,000 jobs equates to a 27.5 decrease.

    The VEC also provided data on changes in the number of persons employed in 2004 and 2014 by metropolitan area. Of the 10 metropolitan statistical areas in the Commonwealth, only Staunton has fewer positions in 2014 than it did 10 years earlier. Job growth in the other nine areas varied widely, with 145,800 of the 186,600 statewide increase in positions occurring in Northern Virginia, which experienced an 11.8 percent increase. By comparison, the metropolitan area with the second largest increase in employment was Richmond with an increase of 37,200 (6.3 percent). The area with the largest rate of growth in employment was Charlottesville, where an increase in employment of 13,000 jobs resulted in an increase of 13.5 percent.

    While the Commonwealth's labor force participation rate for October 2015 was 61.7 percent, a map provided by the VEC illustrates the range of labor participation rates in Virginia's cities and counties. The rate ranges from a high of 77 percent in Loudoun County to a low of 43 percent in Dickenson County. Virginia's statewide rate is third highest of the six jurisdictions in the Fourth Circuit region, with the District of Columbia (65.7 percent) and Maryland (63.7 percent) having higher rates and North Carolina (57.9 percent), South Carolina (55.7 percent), and West Virginia (50.3 percent) having lower rates.

    4. Short-time Compensation Program

    During the 2014 Session, the General Assembly enacted Senate Bill 110 to authorize the establishment of a Short-Time Compensation (STC) program. Under an STC program, employers may seek approval of a plan to reduce the hours worked by employees and permit the employees whose hours are reduced to receive partial compensation for lost wages.

    The bill included enactment clauses providing that (i) the program will expire on January 1, 2020, and (ii) if federal grants covering certain costs of establishing the program are not received by the VEC by July 1, 2016, the program will expire on that date. The U.S. Department of Labor has notified the VEC that the inclusion of these enactment clauses made the Commonwealth ineligible for federal grants that could have covered the VEC's costs of establishing the program.

    Since the STC program became effective on January 1, 2015, no employers have qualified to participate in the program. The lack of employer interest in the program may be attributed to the requirement that participating employers continue to provide health insurance benefits for employees whose hours are reduced.

    5. Military Trailing Spouse Program

    During the 2014 Session, the General Assembly also enacted Senate Bill 18 to establish a military trailing spouse (MTS) program. The MTS program provides that good cause for leaving employment exists if an employee voluntarily leaves a job to accompany the employee's spouse, who is on active duty in the military or naval services of the United States, to a new military-related assignment established pursuant to a permanent change of duty order from which the employee's place of employment is not reasonably accessible. VEC data revealed that 130 claimants were paid $282,072.60 in benefits during the period of July 1 through October 31, 2015. During fiscal year 2015, the VEC paid out $658,597 in unemployment benefits to 212 claimants. The payment of benefits under the MTS program reduced the Trust Fund solvency level by 0.1 of a percentage point and had no effect on either the 2016 base tax rates or the pool tax rate.

    6. Treasury Offset Program

    The Treasury Offset Program (TOP) is a centralized offset program administered by the Bureau of the Fiscal Service, an agency within the U.S. Department of the Treasury. TOP is used to collect delinquent debts owed to federal agencies and states.

    Section § 2.2-4806 of the Code of Virginia requires state agencies to use TOP to collect eligible debts. The VEC will utilize TOP to collect eligible unemployment benefit overpayment debts and unpaid unemployment tax debts. Debts are eligible to be referred to TOP if they are the result of fraud or the claimant's failure to report earnings while collecting unemployment benefits, or if they are more than 90 days delinquent and the debtor is not in appeal, repayment, or bankruptcy. The VEC estimated that in the first year of participation, approximately 65,000 accounts will be referred to TOP and that $35 million will be requested for offset.

    The entirety of the funds recovered from TOP is required to be deposited into the Trust Fund. This requirement precludes the VEC from using funds collected through TOP to cover the charge of $17 per offset. As a result, the VEC is required to pay the offset charges, which are expected to be up to $1 million, from its own funds. The VEC acknowledged that an appropriation will be required to cover this cost, and reported that the administration has been asked to include it in the Governor's amendments to the budget. Members cautioned that if an appropriation of general funds for such purpose is not be approved, the VEC may want to seek a budget amendment that authorizes the use of funds in the agency's penalty and interest account to cover TOP offset charges.

    7. Status of the VEC's Unemployment Modernization Project

    The VEC has been working since 2010 to implement upgrades to its information technology systems through its Unemployment Modernization Project (UI Mod). UI Mod was intended to replace the agency's mainframe computer system with one capable of supporting the payment of benefits to unemployed workers, the collection of taxes from employers, and the accumulation of wage data.

    At the August 4 meeting, the VEC reported that the tax portions of the program have been completed and will "go live" on a date this fall. At the December 9 meeting, the VEC reported that the employer-facing portion of the tax portion of UI Mod "went live" on November 16, 2015. During the following week, the customer facing "went live" and the VEC is working to address system glitches by January 2016.

    The VEC also reported on its cost savings initiative. The VEC has identified savings from a variety of sources, including canceling a lease for office space near its downtown headquarters, reducing its vehicle fleet, and eliminating unused and underused computers.

    8. House Bill 1278

    The chairman of the House Commerce and Labor Committee requested that the chairman of the UC Commission consider issues raised by House Bill 1278 from the 2015 Session. House Bill 1278, introduced by Delegate Glenn Davis, amends provisions in Virginia's unemployment compensation laws designating the employer responsible for benefit charges. Under current law, the last employer that employed a benefits-eligible individual for 30 days (whether or not consecutive) or 240 hours will be assessed benefit charges relating to such individual's benefit claim. The bill increases the employment thresholds at which responsibility attaches to 60 days or 480 hours. The last employer that employed a benefits-eligible individual for this period will be assessed benefit charges relating to such individual's benefit claim.

    According to the VEC's fiscal impact statement, the fiscal impact of House Bill 1278 could not be determined. When the bill was heard in House Commerce and Labor Subcommittee #2 on January 29, 2015, the VEC reported that the bill's administrative costs would be $652,040. The Code of Virginia requires that a claimant have qualifying separations from his last 30-day employer and any subsequent employers. As a result, the VEC is required to adjudicate issues arising from recent non-chargeable employers. Increasing the charging period from 30 to 60 days would be expected to increase the number of adjudications.

    In addition to making some prior 60-day employers responsible for benefit charges associated with subsequent discharges of a former employee, the measure would have the effect of increasing the pool tax paid by all employers, because the benefits would be charged to the pool if a responsible 60-day employer cannot be ascertained. Data provided by the VEC indicated that if a measure like House Bill 1278 were to take effect on July 1, 2016, the pool tax rate would increase by an average of 0.11 percent for each of the years 2017 through 2024. Over this eight year period, the additional taxes required by the bill would total $173.3 million.

    In his remarks to the UC Commission, Delegate Davis acknowledged that House Bill 1278 did not accomplish his goal, which was to eliminate the "cliff effect" that results from the existing 30-day attachment period without increasing taxes or making employees ineligible for benefits. He reported that he has been working with Pat Levy-Lavelle of the Legal Aid Justice Center to develop an alternative approach, based on the system in effect in 34 other states, whereby all employers of a claimant during the base period are charged benefits in proportion to the wages earned by the claimant with each employer. Delegate Davis stated his intent to continue examining this option, which was the basis of legislation introduced by former Delegate Robert Tata as House Bill 2485 in 2003.

    On Senator Watkins' motion, the UC Commission recommended that House Bill 1278 not be recommended. Delegate Davis was advised to meet with the VEC and other interested groups, including the Virginia Chamber of Commerce and the Legal Aid Justice Center, in the development of his alternative legislation.

    9. House Bill 1855

    The chairman of the House Commerce and Labor Committee also requested that the chairman of the UC Commission consider issues raised by House Bill 1855 from the 2015 Session. House Bill 1855, introduced by Delegate Les Adams, excludes from the amount of wages paid by an employer, for purposes of calculating state unemployment tax liability, wages paid to an employee who owns all or a majority of the equity of the employer, if the employer is a corporation, limited liability company, or other business entity. The bill's rationale was that the wages of an employee who is also the owner of the employing business should not be subject to state unemployment taxes if the employee/business owner is ineligible for unemployment compensation benefits.

    Regardless of the merits of that rationale, the bill if enacted would have the effect of making the employing business liable for a 10-fold increase (from $42 to $420 per employee) in its federal unemployment tax. This result would occur because the 90 percent tax credit against the federal unemployment tax that is provided to employers that pay state unemployment taxes on time and in full per employee would be forfeited.

    Faced with this result, Delegate Adams announced that he did not wish to pursue House Bill 1855 as introduced. Through staff, he asked the UC Commission to consider whether the VEC's standards for determining when the owner of a business is eligible for UI benefits are appropriate. Under the decision of the VEC on appeal of the Appeals Examiner's ruling, the circumstances that may be considered in determining whether the claimant may be deemed unemployed due to the resulting separation from employment and lack of work include whether the claimant has disposed of his interest in the employer corporation, or whether the corporation has been completely dissolved so that there is no position or job. Prior decisions have held that a claimant who continued to perform services for an inactive corporation for no compensation nonetheless remains an employee of the corporation.

    Delegate Adams also asked the UC Commission to explore whether there is a better way to make information about the VEC's standards available or accessible to employers. While the VEC website includes links to certain court and appeals documents, all case decisions are not available and employers may not be aware that the information is available on the website.

    Lisa Rowley, the VEC's Chief Administrative Law Judge, provided the UC Commission with an overview of the VEC's current standards for determining whether an owner of a defunct business is still an employee of the business, and, if not, whether the termination of employment was voluntary. She added that in the case involving Delegate Adams' constituent that gave rise to House Bill 1855, the employer/corporation is still in business.

    The UC Commission decided to make no recommendation on House Bill 1855. Senator Watkins observed that the other matters raised by Delegate Adams, such as appropriateness of the current standards and the ability of employers to access information about these standards, are not embodied in the bill that was referred to the UC Commission.

    III. CONCLUSION

    Materials provided by speakers at the UC Commission's meetings in 2015 may be found on the UC Commission's website at http://dls.virginia.gov/commissions/ucc.htm?x=mtg.