The New Faculty Majority and six unions tried to get the DOL to extend the Cervisi language nationwide, but in 2016 the DOL refused to do so. Instead, Assistant Secretary of Labor Portia Wu issued Unemployment Insurance Program Letter No. 5-17 that in effect kept the current unfair system in place, with only slight modifications.
When an adjunct applies for unemployment, some colleges (or their agents) may challenge her claim by telling the state agency that she has “reasonable assurance” of future employment. The state agency will then initiate a fact-finding process.
But if the college does not challenge an adjunct’s application, the state unemployment agency will not have any evidence to contradict her claim that she does not have “reasonable assurance.” So every union and every adjunct organization should insist that colleges agree not to challenge contingent faculty applications for unemployment and this should be bargained and included in every union contract.
Most states already have laws against employees or employers making false statements to collect, or avoid payment of, unemployment compensation, though the state agencies have seemed concerned only with fraud committed by employees, and not by employers.
But when colleges issue contracts stating that adjuncts do not have “reasonable assurance,” and then tell the employment agency that these adjuncts do have “reasonable assurance,” they are committing fraud and there should be legal consequences. It is high time for unions and others to file fraud charges with their state agencies. Governors and state legislatures should make clear that they will not tolerate colleges making false claims in order to avoid paying unemployment.
For adjunct unemployment applicants, it would certainly be a positive step if Cervisi could be incorporated into federal law. However, the decision is not perfect since it still singles out individual adjuncts to undergo the “reasonable assurance” means test. While most California applicants are successful, they can still run into traps and have their claims denied, which is why some unions such as the California Faculty Association have prepared unemployment training manuals to help their members with challenges and appeals.
California has more than 100 private colleges and universities, where few adjuncts are represented by unions to help them navigate the unemployment system. Moreover, some adjuncts, both inside and outside of California, can still be intimidated by the process that often challenges their unemployment claims. Some unemployed adjuncts, even when in financial need, may not apply out of fear of an adversarial confrontation with their college employers.
The optimum route would be to pass federal legislation making it clear that Congress never intended its 1970s “reasonable assurance” means test to apply to part-time, adjunct, or contingent faculty who, since the 1970s, have become the majority faculty and who are neither employed nor paid by anyone for term breaks or summers when they are not teaching. Such legislation should reaffirm that they are unemployed through no fault of their own, thereby falling under the primary mission of the unemployment system. Not only would this bring about economic justice, it would eliminate the intimidation and harassment that many adjunct unemployment applicants have felt nationwide and would further bring the national disgrace of the unequal treatment of adjunct instructors to the attention of the U.S. Congress where it has long belonged.
About the Author
Keith Hoeller is the Co-founder (with Teresa Knudsen) of the Washington Part-Time Faculty Association and the Editor of Equality for Contingent Faculty: Overcoming the Two-Tier System (Vanderbilt University Press). Many thanks to Jack Longmate for his helpful comments on an earlier draft of this article. “Why Adjuncts Deserve Unemployment Compensation and How They Can Get It” is a brief summary of Keith’s lengthy Monthly Review Online essay, “Colleges Layoff Underpaid Adjuncts Then Challenge Their Unemployment Claims” published on July 22, 2020. To get in touch, contact khoeller@comcast.net.