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Unemployment Compensation for Contingent Faculty

New guidance from the United States Department of Labor heightens the potential for faculty on contingent appointments to get unemployment compensation over breaks between semesters. The guidance, Unemployment Insurance Program Letter No. 05-17, explains the unemployment compensation standards applied to contingent faculty members and increases the likelihood that they will be eligible for unemployment.

The AAUP, along with a coalition of other organizations, engaged in a lengthy campaign to inform the labor department of the changed reality of faculty employment on university campuses. This effort included meetings with labor department staff and letters of explanation from the AAUP and other organizations, including the American Federation of Teachers, Communications Workers of America, National Education Association, New Faculty Majority, Service Employees International Union, United Auto Workers, and United Steel Workers. While the new guidance does not address all of the concerns of faculty, it is a significant improvement for contingent faculty.

Most importantly, the guidance addresses a significant issue faced by contingent faculty: when can they receive unemployment compensation during a break between terms (generally the end of the spring term) if they have only a contingent appointment the following term. Federal law explicitly addresses the payment of unemployment compensation for breaks between academic years (generally the summer break) and a faculty member may not be paid unemployment compensation “between academic years or terms, and during vacation periods or holiday recesses within terms, if that employee has a ‘contract’ or ‘reasonable assurance’ of performing services in such educational employment in the following year, term, or remainder of a term.”

Thus, for contingent faculty, the primary relevant factor for determining eligibility for unemployment compensation is whether the faculty member has “a reasonable assurance of employment” in the subsequent semester. If the faculty member has such an assurance, they are generally not eligible for unemployment during the break between semesters; however, if they do not have such an assurance they may be eligible for unemployment compensation starting at the end of their last period of employment. (Of course, the faculty member must meet other eligibility requirements, such as applying for benefits and not having certain other employment.)

The labor department’s last guidance applicable to education employees regarding eligibility when school is not in session, issued in 1986, addressed mainly primary and secondary education and not higher education. The recent guidance, echoing themes articulated by the AAUP for years, explicitly acknowledges that “the employment model educational institutions follow has changed appreciably, particularly for institutions of higher education. In higher education the use of part-time instructors, often referred to as “adjunct” or “contingent” faculty, has increased significantly.”

Recognizing these changed circumstances, the new guidance pays particular attention to contingent faculty.  It explains that, in order to deny unemployment to contingent faculty based on a claim of employment in the following semester, the state unemployment compensation office must first determine that three prerequisites are all met: the offer of employment must be genuine and made by an individual with authority to offer employment; the employment offered must be in the same capacity; and the earnings in the following year or term may not be significantly less (generally at least 90%) than the preceding one.

Assuming that these prerequisites are met, the state must determine whether the contract offered constitutes a reasonable assurance of employment. The guidance focuses on the “contingencies” that define contingent appointments. It explains that “If any contingencies in the offer are within the employer’s (i.e., the educational institution’s) control, the state agency must determine the claimant does not have a reasonable assurance.” It then addressed the particular contingencies often faced by contingent faculty. “The Department considers contingencies such as course programming, decisions on how to allocate available funding, final course offerings, program changes, and facility availability to be within the control of the employer . . . .  Similarly, offers that contain contingencies that allow employers to retract the offer at their discretion are considered to be within the employers’ control . . . . 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. However, as explained above, if the employer receives a general appropriation and can choose how to allocate those funds, this contingency would be within the employer’s control.”  The labor department also explains how 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,” and how the state agency must weigh the “contingent nature of the offer.”

Finally, the guidance addresses a number of situations particular to higher education faculty: it clarifies how to determine eligibility when faculty provide services for more than one educational employer; it explains that graduate students may also be entitled to unemployment compensation under the same rules, and that while generally graduate students who are enrolled and regularly attending classes would not be eligible for unemployment compensation, some states provide broader coverage; and it provides examples of specific situations applicable to faculty.

Applying this guidance in particular situations is up to the state unemployment agency and its staff. The faculty member seeking unemployment compensation is not required to be an expert in the law, and is not required to “prove” his or her case. As the guidance explains, the burden of proof is not on the claimant to prove whether there was a reasonable assurance, rather this is a determination that the state agency is responsible for making. The faculty member should provide the state with the evidence the faculty member has, particularly any letter or notice of potential appointment. (The faculty member may also want to make the state aware of the guidance if necessary.) The state may ask for additional information from the faculty member or the university. It is the state, as a neutral decision maker, that then does the investigation and research and issues a decision.

As long as the faculty member is honest with the state, and has at least a potential for receiving benefits, there is generally no penalty for applying for unemployment compensation. Therefore, contingent faculty may wish to apply for unemployment compensation if they believe they have any reasonable potential for receiving it.