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Apply, but keep it simple PDF Print E-mail
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.

Last Updated on Wednesday, 20 March 2013 08:17

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