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December 27, 2016

Good news for contingent faculty applying for unemployment insurance between academic terms (like now): DOL guidance clarifies to state agencies how to understand adjunct employment and our right to unemployment insurance under the law.

The DOL’s just-released Unemployment Insurance Program Letter (UIPL) 05-17 provides long-overdue guidance to address the new reality of contingent academic employment in higher education. New Faculty Majority and the NFM Foundation have been at the forefront of the effort to advocate for the issuance of this guidance. As we explained when we launched our Steve Street National Unemployment Compensation Initiative, this letter is a tool that adjunct faculty can use at the state level, both individually and collectively, to ensure that state agencies are correctly understanding and applying federal law. “The Department is issuing this guidance to remind states of the requirements,” the UIPL explains, as well as to clarify relevant definitions and to explain how contemporary situations might be addressed — a necessary step since the last guidance on this issue was released in 1986.

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.

In advocating for the issuance of this letter, NFM has built on the groundbreaking work of AFT union members and staff in California and Washington who helped win the landmark 1989 Cervisi legal decision and the Washington state statute; of Joe Berry, Helena Worthen, and Beverly Stewart, who wrote a 2008 guide for adjuncts applying for unemployment, and their colleague Frank Brooks; and activists like Jack Longmate and our late colleague Steve Street. Around the country adjuncts have worked to change their state laws to strengthen adjunct access to unemployment and we hope this guidance letter will be helpful to them in their state efforts.

NFM was proud to lead the effort to inform the DOL of the need for this updated letter after we uncovered the 1986 version and proposed requesting its update. We were grateful to collaborate with AFT, NEA, SEIU, AAUP, UAW, USW, and especially adjunct leaders and staff within the unions, on this project. The work we all did together was a wonderful example of what we can accomplish with mutual respect, determination, and solidarity.

We will provide more detailed discussion of the letter in the coming weeks.  But the true test of the new guidance will be how it is implemented.  Commit to filing this spring!

Written by Maria Maisto   

In 2012, New Faculty Majority originated a project to request clarification of the Employment and Training Administration's guidance to state employment security agencies on "reasonable assurance of employment" for contingent employees in higher education. After discovering and doing research on the 1986 UIPL, consulting with the National Employment Law Project, and analyzing the data we had collected as part of our national initiative on unemployment compensation for contingent faculty, we informed national contingent faculty leaders of the advisability of requesting an update to the guidance letter.

In 2012, Judy Olson, a founding board member of NFM who has long chaired the Contingent Faculty Caucus within the NEA, wrote the original draft of the proposed revisions to UIPL 04-87 that forms the basis of the letter you received June 24th. Judy and other contingent faculty leaders in national unions and other organizations, in turn, secured the commitment of their organizations and unions to make the proposal and to encourage additional unions and organizations to join the coalition we convened to work on this project.

Along with colleagues from SEIU, NFM's president Maria Maisto met with then-Undersecretary Jane Oates in 2012 to discuss the proposal, which was, overall, favorably received.  DOL officials indicated that it would be important to see union consensus on this issue, which the unions readily demonstrated. However, with personnel changes imminent in the Department, the effort stalled until Oates's replacement, Portia Wu, was named.

In 2014 the coalition regrouped to make a second request for a UIPL to DOL, this time to Undersecretary Wu. In October 2014 representatives of the coalition, including NFM's Maisto, met with Undersecretary Wu and her staff.  Data from NFM's Unemployment Compensation Initiative were a critical piece of the evidence presented to the Secretary of the need to guarantee contingent faculty access to unemployment as long as they do not have authentic continuing contracts.

Resistance to the issuance of the UIPL seems to be grounded in a misunderstanding of the legality of (or perhaps outright opposition to) the probable effects of such guidance.  In December 2014 the coalition sent a follow-up letter refuting the arguments made in opposition to the suggestion of a new UIPL and asking for further clarification of any objections to it.

Written by Maria Maisto   

by Steve Street


My school's fall appointment letters, issued the preceding spring, read "This offer is ... conditioned upon a sufficient number of students enrolling in the course...," making the contract clearly speculative, to an adjunct's life and mind. And in the summer of 2009, the first time I'd thought to apply for UI payments after 15 years of working on such contracts, the Department of Labor's Unemployment Insurance Division seemed to agree.

But in the summer of 2010, though my contract hadn't changed, my claim was denied. When I persisted, I was scheduled for a hearing a month later before an Administrative Law Judge. "As a claimant, you may have to REPAY BENEFITS ALREADY RECEIVED if a decision by a judge results in a decrease or a denial of your benefits," read my Notice of Hearing (emphasis its own), so I wanted to get this right.

Mindful of Joe Berry's advice after the 1991 Campbell decision in Illinois, in which an unrepresented adjunct was deemed to have "reasonable assurance of future employment" by the mere fact of having been re-hired year after year previously, regardless of what his contract said, I sought representation. New York State United Teachers (NYSUT), a union affiliated with my own United University Professions, supports legislation currently in committee that would expressly guarantee the claims of part-time faculty in higher education whose contracts are dependent on enrollment, funding, or programmatic factors outside their control. But after a couple of unanswered queries, my local Labor Relations Specialist informed me that NYSUT's policy was not to represent individual members.

He did however direct me to a labor representative employed by a local law firm, not an attorney himself but experienced in UIC claims, who agreed to advise me and accompany me to my hearing pro bono, "because it's an interesting case." Lucky for me.

I'd meticulously prepared by going downtown to read my file, a claimant's right, and subpoenaing - another right - the secretary who'd told a UID caller that fall enrollments at my school were way up, so I had reasonable assurance. Not only was that news never communicated to me, but my program director had told the assembled faculty a month after appointment letters were issued that because of state budget uncertainty, all classes were in doubt. In spite of potential severe career damage I considered subpoenaing her; instead I asked her for a letter for the ALJ, which she declined to write. But I did have photocopies of my school's computer enrollment data at various times after the secretary's claim that I had reasonable assurance: these showed two of my three scheduled courses with enrollments fluctuating from 15, the cancellation number, to zero. I consolidated all this paperwork as attachments keyed to a two-page chronological explanation of every single possibly pertinent development in my claim.

These included some discrepancies on both parts: a phone message from the UID that I'd inadvertently deleted, for example, had been left with a call-back request by 7/21, but my claim denial was issued on 7/20; then a memo had been added to my file, faulting me for not calling back. Also the state labor law read in one place that claimants couldn't collect if "there is reasonable assurance of reemployment" - which indicates it merely exists, even if only from the employer's point of view - but in another place the law stipulated that "CLAIMANT must have reasonable reassurance....[emphasis mine]." I photocopied and highlighted that, too. In final preparation I watched Al Pacino's climactic scene in "Justice for All." It's a kick - but no way to act at in a UIC hearing, as it turned out.

"No, no, no," my labor representative said, paging through my 10-page packet, tearing items out. Apparently, just as with teaching, it was possible to over prepare. Having appeared before my judge many times, my labor rep said I couldn't have picked a worse one: hardworking and humorless, he lived and breathed the law. Rule number one: the hearing would be his world. I wasn't going to be setting the pace or escorting anyone through events the way I saw them. I was going to be answering the judge's questions. "Don't bring up irrelevancies. Don't get things off your chest." My labor rep seemed a little nervous. We rehearsed. 

When had I last worked for my present employer, and when had I started?
Well, I'd just finished a summer course that I'd taken over for a colleague who'd fallen ill, and I'd answered a student's email about grades the night before, which was work, though that contract had been technically over for a week. As for starting, I'd first taught on this campus in 2003, though I'd been employed by the same university system since 1994, albeit on different campuses and always on the very kind of 10-month contingent contract in my packet, which began on September 1, 2009, so ....

How long had I worked for my present employer?
Since September 1, 2003. My last contract ended May 31, 2010.

Good. Keep it simple.

When we got in the judge's room I could see why: overworked like the rest of us, he seemed to be reading many of my documents closely for the first time, including the letter in which I requested a hearing, which detailed my claim from the start. My file had been compiled by several people in several branches of the Department of Labor's Unemployment Insurance Division, each of them apparently glancing through and adding this or that memo that seemed to shore up the denial of my claim.

At a couple of points, the judge asked me whether I had anything to add. I emphasized only the "conditioned upon" sentence in my contract and the low enrollment figures throughout the summer. I never got into the discrepancy between call-back and decision dates. I never even got into the distinction been "there is" and "claimant has reasonable assurance," though I regretted that oversight as we walked out.

But though the judge had said I'd hear within two weeks, I received the letter the next day: "The initial determination is overruled. Claimant is allowed to receive benefits with respect to the issue herein."

Without my labor representative's coaching, I might well have blown it. What with pent-up frustrations from the seemingly contradictory notices I'd been receiving by mail from the UID for two months, the waiting and the uncertainty and the possibility of having to pay back my previous summer's payments, not to mention all the other frustrations of adjuncting that can seem to overlap ("And look at that salary too, Your Honor: is that enough to live on? I ask you!"), I could have repeatedly broken Rule #1.

But an ALJ hearing's an end point of a bureaucratic process: it's about justice, sure, but before that it's about paperwork. So when you do get a face at a hearing, don't get in it. Just bring representation if you can, know and focus on your essential particulars, believe in your rights, and answer the questions.

And share your stories with NFM. Good luck.

Written by Maria Maisto   


“Surviving an Unemployment Hearing”

By Jessica Burke, Adjunct Lecturer, Dept of English, The College of Staten Island.


Claiming unemployment between semesters takes gumption and guts. So if you don’t want a hassle or don’t feel up to challenging the system, I’d say don’t do it. But, for everyone else, here’s my story.


Written by Administrator   
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The information on this website is not intended to serve as legal advice.  Any information on this website or otherwise promulgated by NFM's directors, members, advisors, or contributors should not be relied upon as legal advice and, despite our best efforts, cannot be warrantied as current or accurate.  Please seek legal counsel from the provider of your choice.


Read the January 10 2017 story in Inside Higher Ed

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Read the May 24, 2010 Press Release.

Read the May 24, 2010 story in the Chronicle of Higher Education.


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