“We Now Have the Worst Unemployment Rate Since the Great Depression,” read Slate’s headline. The 20.5 million jobs lost in April and the nearly 15% unemployment rate “may understate the actual extent of joblessness,” writes reporter Jacob Weissman.
More than 51 million people have filed initial unemployment claims since the pandemic lockdown began seventeen weeks ago. But if you add the millions of people who dropped out and stopped looking for work, writes DailyKos reporter Meteor Blades, the real unemployment rate was more likely 26.3%, or “higher than the worst of the Great Depression at 25.6% in May 1933. Almost three times worse than the Great Recession at 10% in October 2009.”
Though most colleges have been able to forestall some faculty layoffs by moving Spring classes online and instituting hiring freezes, the Chronicle of Higher Education says that 20,000 jobs were lost in March alone, which is two and one-half times the next highest monthly job loss in the past forty years. The Chronicle is now keeping a college by college tally of pay cuts, unpaid furloughs and faculty layoffs, though they are not tracking whether these are hitting tenure-track or contingent professors the hardest.
“June Brought More Faculty Layoffs” headlined an article in Forbes magazine. Michael Nietzel gave a roll call of colleges and universities laying off professors, and wrote, “The announcements come after other cost-cutting measures—widespread furloughs, salary reductions, elimination of vacant positions and large cutbacks in operating expenses—have proven insufficient to cover ever-widening budget holes.”
Public colleges have still not recovered from declining state support following the Great Recession of 2008-09. Private colleges are now facing millions of dollars in losses to their endowments both from the volatile stock market and potentially fewer donations. And all colleges will suffer lost tuition with enrollments declining as much as 20%.
In “Do College Professors Deserve a Living Wage?” I pointed out that most college professors no longer qualify as middle-class with three of every four now teaching off the tenure-track with poverty-level wages. Study after study has shown that as many as twenty-five percent of adjunct professors are on some kind of public assistance, with one-third earning less than $25,000 a year.
Several states have already announced substantial budget cuts to higher education. Since one and one-half million contingent faculty teach with neither tenure nor any other meaningful job security, they are likely to be the first to go. Indeed, the City University of New York (CUNY) has already initiated plans for the layoff of adjunct faculty. Rutgers University in New Jersey has announced it is eliminating the jobs of 20% of it 3,000 part-time lecturers.
Unemployment Hard to Get by Design
Unemployment has never been easy for anyone to get, which is by design. Vox reporter Sean Illing writes, “the broader social welfare system in the United States is generally hard to access: riddled with red tape, and plagued by pointless burdens.”
Georgetown Public Policy Professors Pamela Herd and Donald Moynihan, co-authors of Administrative Burdens: Policymaking by Other Means, published an op-ed in The New York Times called, “The Coronavirus Stimulus is Playing Hard to Get: Why Do We Make it So Difficult for People to Receive Unemployment and Other Forms of Relief?” They wrote: “At the best of times, unemployment insurance processes are difficult to navigate. Even before the coronavirus hit, one out of four people who were eligible did not receive benefits. Demanding eligibility rules exclude many more.”
Vox’s Illing interviewed Herd who says, “We’re fixated on fraud and abuse, which is extremely low in social welfare programs—something like 1 to 2 percent of cases. And even then, it’s not what people mean when they think of ‘fraud and abuse.’ It’s mostly people making mistakes because they didn’t understand eligibility rules…The pretense is always about preventing fraud and abuse.”
The troubled relationship between adjuncts and the policies governing unemployment insurance–which I am about to describe in detail–are therefore typical of the failure of labor law and social policy to ensure that all workers have minimum standards of health and security. University administrators treat us as disposable human capital under their command. We may be highly educated, but are nonetheless typical of the increasing marginalization of the entire workforce in a world where the corporate drive for profits knows no bounds except those we can impose on it.
Congress Exempts Teachers From Unemployment During Term Breaks and Summers
Of all workers, teachers and college professors have especially found it difficult to collect unemployment compensation (UC). For fifty years, the U.S. Department of Labor (DOL) has singled out “educational employees” for a specific means test commonly called “reasonable assurance” but officially termed “the between and within terms denial.”
Our nation’s unemployment program is a joint partnership of the federal government and the states. State laws must meet the approval of the Secretary of Labor. Federal law was changed in 1970 and 1976 to extend unemployment to public schools and colleges and universities, with one exception as stipulated in 26 U.S. Code Section 3304(a)(6)(A)(i) through (iv):
For anyone who works as a professional in an “educational institution” as a teacher, researcher, or administrator, unemployment “compensation shall not be payable on such services for any week commencing during the period between two successive academic years or terms…if there is a contract or reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic terms or years” (paragraph i). Further, compensation will be denied “during an established and customary vacation period or holiday recess…[if] there is a reasonable assurance that such individual will perform such services in the period immediately following such vacation period or holiday recess” (paragraph iii).
All Faculty Groups Claim that Adjuncts Do Not Have “Reasonable Assurance”
In my 2004 Chronicle of Higher Education article “Neither Reasonable, Nor Assuring,” I summarized the irony of claims by colleges that adjuncts have “reasonable assurance” of future employment:
The same colleges and universities that save millions of dollars by hiring adjuncts and paying them 50 percent of what they pay full-timers, and denying them any form of job security, vigorously fight unemployment applications made by those same adjuncts. What is more, they fight unemployment claims by adjuncts by telling the unemployment office that the adjuncts are ineligible because they have “reasonable assurance” of returning to work after their “scheduled” term breaks and summers. In other words, a decades-old unemployment rule meant to keep full-timers from collecting unemployment is routinely used to keep part-timers from collecting unemployment.
In their 2007 Access to Unemployment Insurance Benefits for Contingent Faculty, Joe Berry, Beverly Stewart, and Helena Worthen explain that the 1935 Social Security Act that created unemployment insurance did not originally include:
public employees, including education employees and higher education employees, [who] were finally brought under the employment provisions of the Social Security Act in the 1970s. When that was done the use of temporary contingent non-permanent teachers was not a large social reality. And so, fearing that teachers with their “summers off” might take advantage of this law—many of them received their pay in ten checks rather than twelve–a special provision was written into the federal enabling legislation. The law stated that while states would have to provide coverage to this newly added group of workers, teachers would be excluded unless they could demonstrate that they did not have “reasonable assurance” of continued employment. This was, of course, primarily to avoid the double dipping of full-time regular teachers in the summer when they were still continuing to receive “year-round” salary for a job that they were “reasonably assured” of returning to in the fall. No other group was required to provide evidence of not having “reasonable assurance.” (p. 8).
Congress Intended Unemployment Exemption Only for Full-Time Faculty on Annual Contracts
The legislative history of “reasonable assurance” confirms that Congress’ original intent was to deny unemployment to full-time tenure-track teachers and college professors during term breaks, holidays, and summer vacations because, though they were not teaching, they were being paid for these periods under the terms of their annual contracts.
The 1970 Federal Unemployment Tax Act (FUTA) extended unemployment to colleges and universities, with the sole exception of academic employees. The Senate Finance Committee Report (1970) explained why: “It is common for faculty and other professional employees of a college or university to be employed pursuant to an annual contract at an annual salary, but for a work period of less than 12 months. The annual salaries are intended to cover the entire year, including the summer periods, a semester break, a sabbatical period or similar nonwork periods during which the employment relationship continues.” (p. 16)
There is no mention of part-time and other contingent faculty who almost never have binding contracts for future work. The contracts they do receive are filled with contingencies that allow the colleges to break them; further, they often come late–sometimes after the term has started –after the college determines there is sufficient enrollment to run the class. And the contracts themselves make clear that they are for one term only, with no hope or promise of future employment, and with the certainty that the adjunct does not qualify for tenure.
So without a contract, the contested battle ground for unemployment becomes the interpretation of the term “reasonable assurance,” which was created in 1976 through the “Draft Language and Commentary to Implement the Unemployment Compensation Amendments of 1976” and their five supplements. The “Commentary to the Draft Language “says “the term ‘a reasonable assurance’ means a written, verbal, or implied agreement that the employee will perform services in the same capacity during the ensuing academic year or term. A contract is intended to include tenure status” (p. 54).
An example of the DOL’s need for the term “reasonable assurance” as a supplement to an employment “contract” is contained in its 1976 “Draft Language”:
Does a teacher have “a reasonable assurance” of reemployment while the teacher’s union is still negotiating for a new collective bargaining contract in the summer?…If the school has informed the teacher that she/he has a bona fide reasonable assurance of returning to work, and the State [employment] agency has been so informed, benefits must be denied during the summer even though a union contract has not been signed. If the teacher has no such assurance from the school, the between terms denial would not apply until such assurance is received, whether or not the union contract has been signed (Supplement 1, p. 18).
In other words, if full-time teachers and college professors do not have signed contracts because their union contract has not been ratified, or their state has not yet passed its fiscal budget, there is no real doubt that full-time K-12 teachers and college professors will nevertheless have annual contracts for the coming year. But nowhere in this 1976 DOL document are there any references to part-time, adjunct, or other contingent faculty who are in fact unemployed and unpaid during these periods.
Washington and California State Precedents Exempt Adjuncts from Reasonable Assurance
Indeed, term breaks and summers were never “vacation periods” for contingent faculty who were unemployed. In 1994 I co-founded my first adjunct group with several other activists: the Washington Association of Part-Time Faculty (WAPFAC). Diane Evans, our first President, won a lawsuit in King County Superior Court in Washington state called Evans v. Employment Security, which ruled that the summer term is not a vacation period for part-time community college professors and they are entitled to compensation because when they are not teaching they are unemployed.
The decision known as Cervisi v. Unemployment Insurance Appeals Board (1989) reaffirmed California’s statute that clearly stated that “reasonable assurance” included “an offer or assignment made by the educational institution, provided that the offer or assignment is not contingent on enrollment, funding, or program changes.” The decision emphasizes, “under the statute, an assignment that is contingent on enrollment, funding, or program changes is not a ‘reasonable assurance’ of employment.” This case was won by California attorney Robert Bezemek, representing AFT Local 2121 (San Francisco Community College District), which received financial assistance from the California Federation of Teachers and the American Federation of Teachers (Personal Communication from Bezemek).
Eight Adjunct Faculty Organizations Seek to Change DOL Policy
In 1999 the Washington Part-Time Faculty Association (WPFA), which I co-founded with Terry Knudsen in 1997, attempted to change Washington state law to incorporate the language of California’s Cervisi decision that any employment offer contingent on enrollment, funding or program changes did not qualify as “reasonable assurance.” The U.S. Department of Labor learned of our plans and intervened, telling legislators that if they incorporated the Cervisi language into Washington law, the DOL would withhold one billion dollars in federal funds to the state. Recall that the Secretary of Labor must approve all state unemployment laws and they must conform to 26 U.S. Code, Section 3304 (a)(6)(A)(i) through (iv) dealing with teachers and “reasonable assurance.”
While the Washington Part-Time Faculty Association was unable to get something as clear-cut as the Cervisi language into Washington state law, we were able to incorporate the sentence, “Primary weight will be given to the contingent nature of an offer of employment” and to add a section stating “In order to attract and retain instructors, those who are subject to uncertainties of employment must be provided assurance that their economic needs are addressed. Contingent assurances of future employment are often speculative and do not rise to the level of other forms of assurance.”
In 2009 the fledgling New Faculty Majority (NFM) initiated its years-long Steve Street Unemployment Compensation Initiative saying, “Institutions that obstruct [unemployment] claims are trying to have it both ways: they want all of the ‘benefits’ of contingent employment without the responsibilities…In short, the disingenuousness of higher ed on this issue is evident in the fact that many institutions have it specifically written into their rules that contingent faculty DON’T have reasonable assurance of continued employment, while at the same time obstructing claims by asserting that they DO have reasonable assurance.”
NFM can be credited for uncovering the DOL’s earlier interpretation of “reasonable assurance” in 1986 (Unemployment Insurance Program Letter No. 04-87). In collaboration with other unions, NFM also initiated the lengthy effort to have the Department of Labor issue a new clarification of “reasonable assurance” for adjunct professors.
In 2014, six unions, all representing substantial numbers of adjuncts, made a “Request for Clarification of Guidance on the Between and Within Terms Denial Provisions in Section 3304(a)(6)(A) of the Federal Unemployment Tax Act.”Senior officers of The National Education Association (NEA), the American Federation of Teachers (AFT), Service Employees International Union (SEIU), American Association of University Professors (AAUP), United Auto Workers (UAW), and Communication Workers of America (CWA) sent a letter to Portia Wu, the Assistant Secretary of the Department of Labor’s Employment and Administration Division under President Obama.
The unions asserted that the states had been inconsistent in their interpretation and application of “reasonable assurance” and that the handful of cases that had reached the state courts reflected divergent opinions. Like the 1999 WPFA attempt, the unions asked the DOL to extend the language of the California Cervisi decision nationwide and to make it clear to state employment agencies “that an offer of employment to a higher education professional is not a ‘reasonable assurance of employment’….where the offer is contingent on factors such as enrollment, funding or program changes” (p. 1).
The unions made use of the earlier DOL Unemployment Insurance Program Letter (1986) on “reasonable assurance” by highlighting that it was aimed at the public schools rather than higher education. Indeed, it contained not a single illustrative example from colleges and universities. Further, the 1986 Program Letter underscores that reasonable assurance “provisions were created to prevent an employee with a reasonable assurance of resuming employment in the next ensuing academic period from receiving benefits during certain holiday and vacation periods or between academic years or terms.”
The unions’ letter cited California for its simple language stating that adjuncts whose offers of future employment were dependent on enrollment, funding or program changes did not have “reasonable assurance.” It also cited that “Washington’s employment security statute expressly distinguishes between tenured and tenure-track employment, on the one hand, and contingent academic employment (at least in two-year colleges), on the other, and establishes a presumption against reasonable assurance with respect to the latter category, with ‘[p]rimary weight … given to the contingent nature of an offer of employment based on enrollment, funding, and program changes.’”
The Department of Labor Issues New Program Letter on “Reasonable Assurance” (2016)
The New Faculty Majority unemployment campaign had begun in 2009 and the six unions had written to the DOL in June of 2014. Yet the DOL did not respond until the waning hours of the Obama administration. On December 24, 2016, the DOL issued its first interpretation of “contract” and “reasonable assurance” in thirty years: Unemployment Insurance Program Letter No. 05-17.
NFM and the six labor unions had asked the DOL to make clear to the states that the California Cervisi decision applied nationwide, so that faculty whose future employment was dependent on enrollment, funding and program changes did not have “reasonable assurance” and would be eligible to collect unemployment. Unfortunately, the new DOL Program Letter did no such thing.
Though she did not mention either NFM or the unions’ June, 2014 letter, Assistant Secretary of Labor Portia Wu concurs with their claim that the DOL’s 1986 Program Letter “did not address specifically examples related to institutions of higher education” (p. 2) and concedes that “states have been inconsistent in their interpretation of the term ‘contract or reasonable assurance,’ particularly in the context of instructional positions in higher education.” (p. 3).
Further, she admits there were few adjuncts when the legislation was first drafted, “In the 1975-76 academic year, approximately twenty-five percent of instructors in institutions of higher education were part-time faculty. However, by 2011 that number had increased to over forty percent.” She also makes clear that the “employment model” at colleges and universities has “changed appreciably” since the 1970s, stating that “many adjunct or contingent faculty have contracts or offers to perform circumstances in subsequent years or terms that are contingent on factors such as funding, enrollment, and program changes.”
Ms. Wu then lays out the criteria to determine whether a contingent faculty member has a “contract” for future employment. A contract must be “an enforceable, non-contingent agreement that provides for compensation: (1) for an entire academic year; or (2) on an annual basis” (p. 5).
To claim “reasonable assurance,” on the other hand, the college must meet all three of the following prerequisites: (1) “The offer of employment may be written, oral, or implied, and must be a genuine offer, that is, an offer made by an individual with actual authority to offer employment” (p. 4); (2) “The employment offered in the following academic year or term, or remainder of the current academic year or term, must be in the same capacity” (p.4); (3) “The economic conditions of the job offered may not be considerably less in the following academic year or term…than in the first academic year or term…” (p. 5). The claimant must “earn at least 90% of the amount that the claimant earned in the first academic year or term” (p.5).
It appears that Ms. Wu does offer two new criteria that could prove to be of benefit to an adjunct applicant. (1) “The state agency must analyze the totality of circumstances to find whether it is highly probable that there is a job available for the claimant in the following academic year or term” (p. 6); (2) “If the offer contains a contingency, the state agency must give primary weight to the contingent nature of the offer. This requires the state agency to find whether it is highly probable that the contingency will be met” (p. 7).
The DOL’s 2016 Program Letter Does Not Solve the Problem for Adjuncts
NFM cited the DOL’s 2016 Program Letter as “good news for contingent faculty”:
Highlights of the letter include: acknowledgment of the inconsistent application of the law in many states and clarification that unemployment cannot be denied if the adjunct’s “economic conditions” in the second term or year are “considerably less than those of the first academic year or term.” State agencies must investigate, and most significant, unemployment insurance cannot be denied as long as there exist contingencies “within the employer’s control.” Contingencies within the employer’s control can include decisions about funding in addition to standard practices such as assignments based on programming and administrative discretion.
There can be no doubt that the DOL’s recent Program Letter (2016) is an improvement over the earlier one (1986). Yet it still fell far short of the goal of having the DOL apply the California Cervisi decision to all fifty states. The ambiguity of the conditions—as opposed to those clearly defined by Cervisi (“enrollment, funding, or program changes”)—has created continuing administrative inconsistency and prevented many adjuncts from receiving compensation.
First, since adjuncts are teachers, they will be singled out for the “reasonable assurance” means test and their eligibility will be decided on a case by case basis. If their college claims they do have “reasonable assurance,” then the individual adjunct will have to prove to the state employment agency that they do not have it.
Second, rather than putting the burden of proof on the college, Ms. Wu says that “neither the claimant nor the employer has the burden to establish the claimant has or does not have a ‘reasonable assurance.’” (p. 7). While this gives the appearance that the state agency is a neutral fact finder and judge, the DOL’s rules, state agency rules, and the training of administrative law judges may predetermine the denial of compensation. The DOL’s insistence that the state agency treat adjuncts identically to full-time professors already prejudices the outcome.
Third, Ms. Wu appears to introduce a brand new criterion: “Are Contingencies Within the Employer’s Control?” If they are, then there can be no “reasonable assurance.” For example, “contingencies that allow employers to retract the offer at their discretion are considered to be within the employers control.”
But she says that “generally, the Department considers contingencies based upon circumstances such as enrollment, funding, such as an appropriation for a specific course, and seniority to not be in the employers’ control.” This idea appears to contradict the Cervisi statement that enrollment and funding do not constitute “reasonable assurance.”
Enrollment is most certainly under the control of the college. I have known many instances where college decisions had a large impact on enrollment. Whether the class is offered in the morning, afternoon, or night, whether it is advertised, whether it is a required course, whether the cancellation decision is made at the last moment or weeks in advance—all are within the college’s control.
Fourth, Ms. Wu allows the college to claim that an adjunct’s “seniority” can be offered as proof that an adjunct has “reasonable assurance,” though it usually has nothing whatsoever to do with whether the course will be held or cancelled. Some (not very many) colleges do have seniority for adjuncts in their faculty union contracts. But in general this type of seniority has to do only with the assignment of courses, and nothing to do with whether the adjunct will actually teach them. The college still reserves the right to cancel an adjunct’s class for a variety of reasons, or in some cases, no reason at all.
Fifth, missing from Ms. Wu’s letter is perhaps one of the largest contingencies of all: “bumping rights.” Most colleges grant full-time tenure-track faculty the right to take an adjunct’s class in order to fulfill their own contractual obligations. So at the last moment, an adjunct who has been offered a class months before it starts, will find she is not teaching it because it has been given to a full-time faculty member whose class was cancelled for low enrollment. The vast majority of adjuncts do not have “reasonable assurance” precisely because their written contracts allow full-timers to take their courses away from them.
The Adjunct Unemployment Labyrinth
But far from “clarifying” the issue, as claimed, the DOL’s Portia Wu, with few exceptions, has affirmed the status quo. Her letter highlights why state employment agencies still remain labyrinths for adjunct professors in which it remains unclear whether one will quickly emerge with benefits or face months of appeals and potentially have to give the money back to the state. Requiring interpretative analysis on the part of the state unemployment authority to assess the “totality of circumstances” of a contingent professor on a case by case basis is not likely to result in equitable treatment of applicants or equitable decisions by the state’s unemployment authority.
An adjunct applying for unemployment today is likely to find that the college challenges her claim on the basis of “reasonable assurance.” The college will have the opportunity to argue that the adjunct has seniority in the assignment of classes, that in the recent past they have not had a class cancelled, that enrollments are outside the college’s control, that they reasonably expect to have classes for her again after her term break or summer off.
The latitude for interpretation can be a source of problems when many state employers contract out the processing of unemployment claims to third-party agents whose aim is to reduce unemployment expenditures. Colleges themselves may also have an interest in minimizing their unemployment expenditures, rarely encouraging their contingent instructors to file for unemployment during periods between terms when they are truly unemployed. Mistakes happen even when the eligibility rules are clear, but when ambiguous, the likelihood of honest or willful mistakes that can deny eligibility increases.
There is nothing at all reasonable or assuring about an offer of employment that is entirely contingent or non-binding on the college. Though “the Security and Exchange Commission requires funds to tell investors that a fund’s past performance does not necessarily predict future results,” the Department of Labor does not tell the states that offers of employment contingent on enrollment, funding, or program changes are not really offers at all.
Conspicuously absent in the letter is the distinction between tenure-track and non-tenure-track instructors, which invites those administering federal unemployment programs at the state level to presume that contingent faculty not teaching during the summer are on a scheduled break or paid summer vacation and thus undeserving of unemployment when, in fact, they are unemployed.
Implications of COVID-19 Pandemic
This pandemic is no different from other financial crises. Adjunct jobs are the first to be placed on the chopping block, with the layoff of these marginalized individuals viewed as the relatively painless nature of things. Rutgers University in New Jersey has already threatened the jobs of their 3,000 part-time lecturers. University of Montana “administrators are looking at each course taught by non-tenure-track faculty to see if there is sufficient demand to continue offering it, and whether it can be reassigned to tenure-track professors,” according to The Missoulian.
In April Beverly Stewart, Grassroots Political Activist of the Illinois Education Association, and twelve other adjunct union representatives, wrote to Gustavo Giraldo Director of the Illinois Department of Employment Security (IDES) about unemployment and the pandemic:
Because of the impact of COVID, there can no longer be reasonable assurance that most adjunct faculty will have class assignments for the fall semester…the current pandemic has changed the “totality of circumstances” for all contingent faculty for the foreseeable future. For this reason, we respectfully request that IDES issue a determination that, for the foreseeable future, no otherwise eligible adjunct should be denied unemployment benefits for summer and subsequent terms based on having a “reasonable assurance” of a class in the semester following the break.
Unfortunately, since she never received a reply, she was unable to open a dialogue with the IDES on adjuncts and the impact of the pandemic (Personal Communication).
Stewart et al. specifically mention that the Coronavirus Aid, Relief, and Economic Security (CARES) Act should help adjuncts since it was designed to give unemployment to those who might not normally receive it. Unfortunately, however, no one in Congress thought to specifically include them.
As Connecticut adjunct Christopher Doucot has pointed out “Gig Professors Need Protection During Coronavirus” too: “While the CARES Act, passed by Congress on March 27, extends unemployment eligibility to ‘gig workers’ like Uber drivers and Grub Hub delivery drivers, part-time faculty have been left out in the cold…The state [Connecticut] argues that adjunct faculty should reasonably assume they will be teaching each spring and fall and are thus ineligible for unemployment insurance.”
On May 15, the DOL did issue its guidance to state agencies concerning the application of the CARES act and its Pandemic Unemployment Assistance, but that guidance presumed that unemployed faculty are simply on scheduled breaks or vacations unless proven otherwise.
The DOL’s Program Letter No. 10-20 did not rescind the application of the “reasonable assurance” means test to part-time and other contingent faculty. Nor can adjuncts—unlike other workers– reapply under the PUA if they do not otherwise qualify:
Between academic years or terms and during established and customary vacation periods or holiday recesses, the individual is unemployed from the educational employment because they are between and within terms. Therefore, an individual is not unemployed from the individual’s educational employment for one of the listed COVID-19 related reasons and cannot establish eligibility for PUA based on services subject to the between and within terms denial (Paragraph 4(e)(i), p. 6).
However, such professors may qualify for partial unemployment if the college shortens or lengthens the regular academic term, and if both their hours and pay are reduced. If the part-timer otherwise qualifies, then she may collect unemployment and the extra $600 per week until July 31, when the CARES act ends (Paragraph 4(e)(ii), p. 7).
Paragraph 4(d) does address the pandemic directly. The state agency must make a decision as to “reasonable assurance” when the individual first applies. But the agency may have to revisit the decision if things should change with the school: “In the event a decision is later made by the employer that the educational institution or school system will not reopen as regularly scheduled, or that a specific individual does not have a reasonable assurance of employment in the same or similar capacity due to budget cuts or declining enrollment, or for any other reason, the state agency must re-assess the individual’s entitlement to benefits” (Paragraph 4(d), p. 6).
It would appear that an adjunct might have a better time collecting if their college undergoes major changes because of the pandemic, especially if the college failed to open for an entire term or academic year. It would be difficult for the college to claim an adjunct had “reasonable assurance” if they were unable to give them a bona fide offer of future courses.
Course cancellations triggered by COVID should mean that the educational institutions cannot deny unemployment eligibility of non-tenured faculty on the grounds of reasonable assurance, as Stewart et al. attempted to establish in Illinois, Still, if colleges have attempted to avoid unemployment expenditures in good economic times, there’s hardly reason to suppose a change of heart during a financial crisis.
Secretary of Labor Eugene Scalia’s insistence that the CARES act does not rescind the “reasonable assurance” means test for adjuncts corresponds with a number of his attempts to limit its application to individuals. As The Washington Post reported, “In recent days, Labor Secretary Eugene Scalia, who has expressed concerns about unemployment insurance being too generous, has used his department’s authority over new laws enacted by Congress to limit who qualifies for joblessness assistance and to make it easier for small businesses not to pay family leave benefits. The new rules make it more difficult for gig workers such as Uber and Lyft drivers to get benefits, while making it easier for some companies to avoid paying their workers coronavirus-related sick and family leave.”
Financial Incentives for Colleges to Challenge Adjunct Unemployment Claims
Since businesses pay unemployment taxes primarily based on how many of their employees qualify, there is a financial inducement for employers to reduce the number of its employees who qualify and how much they can collect. For-profit businesses generally pay for unemployment through a combination of federal and state unemployment payroll taxes.
The federal unemployment tax rate is fixed at 6% of the employee’s first $7,000, though employers may receive a substantial tax credit if they also pay state unemployment taxes. Most states also impose their own unemployment tax on businesses. States may establish a business’s tax rate based upon how many unemployment claims are filed by their employees, often called their “experience rating.”
But since most colleges and universities are non-profits, many are “self-insured” for unemployment. They pay for a worker’s unemployment only if a worker is successful in obtaining it via the state’s employment office. The non-profits usually must pay an additional administrative fee as well.
When a worker files a claim for unemployment, the employer has the opportunity to challenge the claim. This often leaves the employee battling with their employers over the terms of their departure since unemployment applies only to those who have lost their job “through no fault of their own.” Employees often don’t know these rules, but employers do.
Some employers hire consultants such as Employers Unity and TALX, both now owned by Equifax, the giant credit bureau. TALX, which is now called Equifax Workforce Solutions, has a questionable track record: New York Times reporter Jason DeParle writes,“Talx…says it handles more than 30 percent of the nation’s requests for jobless benefits. Pledging to save employers money in part by contesting claims, Talx helps them decide which applications to resist and how to mount effective appeals…When fewer former workers get aid, a company pays lower unemployment taxes.”
Our nation’s colleges and universities save tens of billions of dollars each year by underpaying these professors, denying them benefits, and keeping them guessing as to whether they will have a job next term and how much they can expect to earn. With the pandemic costing states and colleges billions of dollars, these teachers are in danger of losing their livelihood altogether; even if unionized, they are unlikely to have any job security bargained for them.
The very same colleges who use these professors to staff their courses “just in time” to meet enrollments, then deny them unemployment in those terms when they refuse to hire them, thereby saving even more money and keeping them in poverty and insecurity. And the colleges, oftentimes through their hired consultants like TALX, do this by claiming that these professors are on a scheduled break or have job security they do not in fact have.
Once challenged, the adjunct, who has no job security, may be facing off against their college in an adversarial proceeding that can be quite intimidating. If an adjunct wins at one level, the college may appeal to the next level. And if they should collect unemployment, and the college should win on appeal, they will have to pay the money back. For this reason, many adjuncts do not even apply for unemployment.
An example of an adjunct filing for unemployment prior to COVID-19
In 2014, when an Olympic College adjunct instructor learned that she was being laid off during the summer, she filed for unemployment. Washington State Employment Security approved her claim and she began receiving unemployment checks.
Later in the summer, however, the adjunct accepted an Olympic College contract to teach a short-term two-credit class amounting to 11.8 percent of full-time; the adjunct’s normal workload was between 60 and 80 percent of full time.
When Olympic College’s out-of-state consultant (Employers Unity), contracted to process unemployment claims, got wind of the adjunct’s two-credit teaching assignment, it reported to Washington State Employment Security that the adjunct had no basis to have filed for an unemployment, claiming “no separation.”
The College’s challenge to the adjuncts unemployment claim triggered Employment Security Department’s Determination Notice to the adjunct that read: “Your employer reports that you do have reasonable assurance of returning to work in the same or in a similar capacity following the scheduled break period.”
The Determination Notice caused the immediate suspension of unemployment payments. It also required the laid off instructor to reimburse the payments already received. Adding insult to the instructor’s injury was the fact that the gross income from the adjunct’s two-credit class contract was only $1,131.74, while the unemployment payments she had already received, and was now expected to pay back, were in excess of that total.
Fortunately for the adjunct, she appealed the Notice. Her case was heard via telephone conference by a Washington State Administrative Court Judge on August 6, 2014.
The College’s claim that there had been “no separation” in employment violated RCW 50.44.053 §(1), which stipulates that reasonable assurance is retained when the worker “will perform services in the same capacity…” During the other quarters of the academic year, the adjunct instructor was employed between 60 and 80 percent of a full-time assignment, and thus the two-credit summer class, a mere 11.8 percent of full-time, fell far short of being employed “in the same capacity.”
Whether the result of administrative confusion or a deliberately calculated tactic to discourage an unemployment adjunct from seeking unemployment benefits, it is clear that the unemployed adjunct suffered a miserable summer.
I was sworn in as a witness during the Olympic College adjunct’s unemployment applicant’s hearing of August 6, 2014. I also addressed the Olympic College Board of Trustees in its meeting of August 19, 2014, urging the College to discontinue its use of the out-of-state consulting firms to handle Olympic College employee unemployment claims. The college did not respond to my request.
— Jack Longmate *
How Adjuncts Can Collect Unemployment
The national campaigns to get the DOL to make it clear that contingent faculty do not have “reasonable assurance” of future employment have stalled. But like all other employees, adjuncts should be entitled to unemployment compensation when they are not working through no fault of their own. They certainly should not be denied benefits under the false assumption that they are identical to full-time college professors who are being paid year-round on annual contracts.
There are both short-term and long-term solutions.
Handbooks and Workshops
Joe Berry et al Access to Unemployment Benefits for Contingent Faculty is still quite useful, both for a general overview and state by state analysis. Several unions have developed their own handbooks and training guides to help their faculty obtain unemployment.
Pamela Stemberg, an officer in the City University of New York’s Professional Staff Congress (AFT) and the independent RankandFileAction.com, conducted a video workshop called Unemployment Insurance and the Contingent Academic. She noted that CUNY regularly claims their adjuncts have “reasonable assurance,” setting up a battle with the New York Department of Labor. The process can be quite intimidating, with adjuncts often having to face off against their own department chairs, who are the ones who actually hire them and assign them courses. It is not unusual for adjuncts to have to appeal negative decisions. She herself has done so many times. Even with the onset of the pandemic, CUNY has continued to challenge adjunct unemployment claims on grounds of “reasonable assurance” (Personal Communication).
For years Dana Rush of Green River College in Auburn, WA prepared a detailed guidebook that was used throughout the state. The Massachusetts Teachers Association has prepared its own “Guide to Unemployment Benefits for Adjuncts.”
College Pledges Not to Challenge
When an adjunct applies for unemployment, some colleges may challenge her claim by telling the state agency that she has “reasonable assurance” of future employment. In order to determine whether or not the adjunct has “reasonable assurance,” the state agency will initiate a fact-finding process.
However, if the college does not challenge an adjunct’s application for employment, the state unemployment agency will not have any evidence to contradict her claim that she does not have “reasonable assurance.” This should make it simpler and easier for her to collect.
So every union and every adjunct organization should insist that colleges agree not to challenge contingent faculty applications for unemployment and this should be bargained and included in any union contract.
St. Mary’s College of California included language in adjunct contracts designed to deny them unemployment over the summer. But SEIU challenged this and was able to reach an agreement with the college stating that they would not contest adjunct unemployment.
Recently, Caprice Lawless of the Colorado AAUP led a campaign to get the Front Range Community College system to agree not to challenge adjunct unemployment applications and they have agreed for this summer. The Colorado AAUP also set up a GoFundMe account for unemployed adjuncts.
CUNY’s RankandFileAction.com issued five demands to the college after administrators announced potential layoffs of thousands of adjuncts due to the pandemic. Number 2 insisted on “no layoffs or non-reappointments. No challenges to unemployment claims.” The college refused.
The New Faculty Majority and Tenure for the Common Good have both asked colleges to take a “Contingent Unemployment Pledge”: “Our institution pledges to support unemployment insurance claims filed by contingent faculty for at least the foreseeable future. In cases where the language of ‘reasonable assurance’ protects health benefits beyond the current term, we agree not to take a position on claims.” Individual tenured faculty members are also asked to pledge to help by supporting claims that adjuncts do not have “reasonable assurance.”
Bill Lipkin of the United Adjunct Faculty of New Jersey has promoted legislation to make it easier for adjuncts to collect. The original Bill A4132 read in part:
Established and customary vacation period or holiday recess does not include the summer term or semester, unless, based on objective criteria including enrollment and staffing, the summer is not in fact a part of the academic year for a particular institution…A person is presumed not to have reasonable assurance under an offer that is conditioned on enrollment, funding, program changes, or other circumstances under the control of the employer. It is the employer’s burden to provide sufficient documentation to overcome this presumption…If any contingencies in the employment offer are within the employer’s control, the claimant shall not be regarded as having a reasonable assurance of employment. Contingencies within the employer’s control include, but are not limited to, enrollment, funding, including appropriations and the allocation of funding, program changes, final course offering, and facility availability.
While A4132 passed both houses by wide margins, the bill was conditionally vetoed by Governor Phil Murphy on June 29. While a version of A4132 was passed on July 2 and signed by the Governor, the language on summers and “reasonable assurance” had been deleted, perhaps in response to objections by the DOL. Lipkin says he will try again. (Bill Lipkin, Personal Communication).
State Court Cases
California has shown the value of taking unemployment cases to court, which has resulted in a system where contingent faculty generally collect when they apply. While the DOL has not been eager to see Cervisi extended to other states, it has also allowed the case to stand.
While some headway has been made in Washington, the California case remains an outlier. It would be worthwhile to have other states attempt to replicate the Cervisi decision. Since unemployment cases are usually treated on a case by case basis, it may be difficult to conduct a class action suit, which would have the advantage of obtaining money for adjuncts as well. But it is possible to consolidate cases and this might serve a similar purpose.
The Department of Labor
For 50 years the DOL has in effect sided with the colleges by insisting that contingent faculty should be denied unemployment as though they were identical to full-time faculty on paid vacations. They have done this in both Republican and Democratic administrations. And there is reason to believe that in general the unemployment system favors employers.
But there is little legal justification for the DOL’s position. It is certainly possible that a new Secretary of Labor, under a new President, could alter DOL’s policy toward adjuncts. A new Secretary could issue a new Program Letter on “Reasonable Assurance” and/or allow states to pass their own legislation with language similar to California’s.
The most complete answer to the problem is also the most equitable. Congress should pass legislation making its intent clear and the President should sign it. While it would be helpful to have a clear statement that adjunct faculty whose offers of future employment are contingent on enrollment, funding, or program changes do not have “reasonable assurance” (a la Cervisi), it would be ideal to simply state that the reasonable assurance standard was not intended for part-time and other non-tenure-track faculty because when they are not working, they are truly unemployed.
Federal law should make it clear that the purpose of the Federal Unemployment Tax Act is to provide compensation to anyone, including part-time, adjunct, and contingent faculty and/or employees, who find themselves unemployed through no fault of their own. Whether or not their employer might ask them back to work at some future date is irrelevant and does not change the fact that they are unemployed and without remuneration from their employers. A federal law would eliminate the uncertainty that most adjuncts face and eliminate their harassment at the unemployment office.
Fraud Reports to State Agencies
The main justification for making unemployment benefits so difficult to collect is to prevent fraud and abuse. But the DOL and the state agencies seem only interested in potential fraud committed by employees, and not fraud committed by employers.
But when colleges issue contracts that make clear that adjuncts do not have “reasonable assurance,” and then tell the state employment agency that these same adjuncts do have “reasonable assurance,” they are committing fraud and they should be subject to legal consequences. Governors and state legislatures should make clear that they will not tolerate colleges making false claims in order to avoid paying unemployment.
The Department of Labor Inspector General
While President Trump has fired several Inspector Generals, this Watergate reform still exists and could be effective under a different President. Their purpose is to make sure the departments live up to their mission, follow the law, and avoid fraud and abuse. If the DOL is in violation of its mission with respect to its treatment of adjuncts, then a complaint could be a successful way to remedy this situation.
The pandemic is sure to change things in higher education. We should make sure that one of the things it changes for the better is the treatment of one and one-half million college professors who teach off the tenure track. Forcing the colleges to pay unemployment to their adjuncts when they are not employing them is perhaps the surest way for our country to do the right thing for this long exploited class of public servants who are on the front lines of losing their jobs during this pandemic.
In “We Need Smart Spending, Not Dumb Cuts,” California professors Larry Hanley, Brad Erickson, and Juliette Jua suggest several alternatives to strengthen higher ed, including protecting the most vulnerable:
One of the greatest scandals of higher education today is its dependence on underpaid, temporary, and part-time faculty. Many of these gifted and expert faculty live on poverty wages. Though they perform the labor central to education — teaching, they soldier on in the shadows of colleges and universities. Let’s be honest: when administrators talk about cost-cutting, what they’re really talking about is cancelling paychecks and health insurance. What they’re really talking about is adding to the social and human crisis that follows in the wake of COVID-19. Instead, we can protect our colleagues and refuse this moral blunder by reorganizing work.
At the very least, when these underpaid public servants are laid off through no fault of their own, they deserve to receive unemployment insurance like other workers in American society.
I would like to thank several people for providing helpful information in the preparation of this article: Jack Longmate, Don Eron, and Rich Moser went over earlier drafts and offered excellent suggestions for improvement; I also had communication with several people who provided me with their knowledge about unemployment and adjunct faculty: George Wentworth, Beverly Stewart, Pamela Stemberg, Bill Lipkin, Paul Filson, Vanessa Vaille, and Dana Rush. Naturally, I am solely responsible for the content of this article.
* Jack Longmate was an adjunct professor of English at Olympic College for nearly thirty years. He has published more than a dozen articles on adjunct faculty. He served on the steering committee of the Washington Part-Time Faculty Association.