By Keith Hoeller

Why are teachers the only professionals routinely denied unemployment when they are not working?

Though our nation’s unemployment system was established in 1935 by the Social Security Act, not until 1970 did Congress extend it to K-12 schools and colleges and universities, with a special means test solely for full-time professional educators:  If the teacher had a contract that made clear she would still be employed after a regularly scheduled term break when she was not teaching, such as summer vacations, she was ineligible to collect unemployment compensation.

The Senate Finance Committee Report (1970) explains Congress’ intent

“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 non-work periods during which the employment relationship continues”.

(p. 16)

In 1976, Congress added an additional means test for teachers to what the Department of Labor came to call “the between and within terms denial.” If a teacher were to apply for unemployment during one of these non-teaching periods, and the college claimed she had “reasonable assurance” of returning to work after her break, then she was ineligible for unemployment.

Why “reasonable assurance” instead of a contract? Congress gave only one example:  if summer arrived and the union had not yet completed its contract negotiations, full-time teachers would be—temporarily—without an annual contract for the coming year. Congress intended to prevent “double-dipping” by teachers and college professors who were employed full-time on continuing, renewable annual contracts. When they were not working, they were in effect on paid vacations.

Congress intended the “between and within terms denial” and the “reasonable assurance” means test to be applied solely to full-time teachers and college professors since they were the overwhelming majority in the 1970s. But since then U.S. higher education has decided to employ armies of part-time, adjunct, and other contingent professors, who now outnumber the full-time tenure-track professors by three to one.

Yet whether under a Republican or Democratic administration, the U.S. Department of Labor (DOL) has still insisted on applying the “reasonable assurance” means test to all part-time professors who apply for unemployment compensation. These professors rarely receive annual, renewable contracts; they do not have contracts or compensation for the periods in which they are not teaching and thus are certainly not “double-dipping” but are truly unemployed during these non-teaching periods.

In 1989 California was able to win the Cervisi appeals court case stating that part-time faculty whose future employment was dependent on enrollment, funding, or program changes did not have “reasonable assurance” and thus were eligible to collect unemployment compensation. But no other state has similar language in place and adjuncts face many hurdles in proving they do not have “reasonable assurance” of future employment.

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