Monday February 27, 2017

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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   


“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   

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   

NFM is proud to launch this national campaign to help eligible adjunct and contingent college and university faculty obtain unemployment compensation in between academic terms.  In addition to providing pratical assistance to faculty members who are eligible for this benefit, the campaign is part of our broader strategy to reform postsecondary academic employment through education, advocacy, legislation and litigation. By supporting contingent faculty as they apply and collecting statistics on patterns of activity around unemployment claims, we expect to be able to lobby more effectively to change the problematic "reasonable assurance of re-employment" clause in federal unemployment law-the clause that has been invoked (and contested) when denials have occurred.

We are pleased to have the support of the three major faculty unions on this effort and look forward to working with them on it.  As the only national organization dedicated exclusively to advocating for adjunct and contingent faculty, NFM is eager to build on the groundbreaking efforts of activists like Joe Berry, Beverly Stewart, Helena Worthen, Frank Brooks, Jonathan Karpf and the countless others within and outside of unions who have worked to secure this basic right for adjunct and contingent faculty.

When the NFM Board voted to take this on as its first major national initiative, we outlined the following as the rationale:

1. This campaign is an effort to help our most vulnerable constituents to gain access to resources that they need and to which they are entitled. Many adjunct faculty members do not know that they can apply for UI in between terms, or are discouraged from filing. This initiative is meant to provide contingent faculty with support and solidarity as they claim this basic right.  In other words, we will not be advocating for a brand new right but rather a right that already exists; even though it is inconsistently applied, there is legal precedent for it. Unemployment insurance is sometimes denied to part-time faculty but can be awarded to individuals who prevail in their appeals of denial.  It is regularly awarded in California, where the Cervisi decision was decided by the CA Court of Appeals in 1989.

2. Unemployment insurance is an issue that is timely and will be a good way to introduce the subject of contingent faculty rights to a broader audience, which is one of our primary goals. We hope this initiative will show our good faith, since we cannot be faulted for working to make institutions comply with existing law or for working to clarify and update a very vague and problematic legal standard. We want to expose problematic or illegal practices; the denials that sometimes occur outside of California, for example, are often deliberately pursued by colleges and universities who hire firms for the purpose of contesting UI applications.  Institutions obviously stand to gain from not having to pay out hundreds of claims. (The New York Times recently reported on such firms.) 

However, institutions that obstruct claims are trying to have it both ways:  they want all of the "benefits" of contingent employment without the responsibilities. Explaining the reasoning and methods involved in the decisions of colleges and universities to fight unemployment insurance for contingent faculty will begin to expose the fundamental problems and contradictions inherent in institutional policies of contingent faculty employment. 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.  We believe that a concerted national effort at both the state and federal levels will lead to the clarification or elimination of the phrase and affirm this right more clearly.

3. A vast increase in UI applications is a no-cost first step toward job security and economic justice. Engagement with institutions in the light of day can only help our cause.
4. A national campaign will help facilitate efforts to address the issue at both the state and federal levels and help lay the foundation for future efforts on equally important issues. The phrase "reasonable assurance of re-employment" is an outdated standard found in federal unemployment law that was intended to prevent teachers with continuing contracts, which contingent faculty generally do not have, from "double dipping" during their breaks.

Remember: NFM’s larger goal is to improve higher education by establishing regular terms of employment and a living wage for all faculty. When colleges and universities are well managed, they will hire the majority of faculty on a regular basis. We offer this choice: employ us on annual contracts, not conditionally and per semester, or pay us unemployment benefits when we are separated from work. When enough of us have stood up and taken the initiative to claim UI, it will be clear that the principled choice is also the practical one – equitable employment in American colleges and universities


Written by Administrator   
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Legal Disclaimer

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 June 20, 2010 story in the Chronicle of Higher Education (subscription only)

Read the May 24, 2010 Press Release.

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

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