+Gaining and defending Unemployment Rights for contingent faculty in the U.S.

Jonathan Karpf

CFA Associate Vice President for Lecturers-North

Member, COCAL X Steering Committee

COCAL X Mexico, DF 2012

+Other seasonal & precarious workers in the U.S. are eligible for UI benefits:

Why are the majority of faculty on contingent appointments in the U.S. NOT eligible:

A brief history and the challenges ahead.

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Cocal X: Unemployment rights

As noted in Joe Berry, et al “Access to Unemployment

Insurance Benefits for Contingent Faculty: a manual for

applicants and a strategy to gain full rights to benefits”

2008, Chicago COCAL, California is currently the leader in

providing UI benefits for contingent faculty

+Cocal X: Unemployment rights

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Cocal X: Unemployment rights

What made this possible?

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Cocal X: Unemployment rights

Education of rights by faculty activists

High levels of unionization in California

Helped by lower levels of unemployment than currently

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Cocal X: Unemployment rights

The Cervisi Decision (1989)

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Cocal X: Unemployment rights Plaintiffs: Gisele Cervisi, Muriel Bartholomew, and other part-

time, hourly employees in SF Community College district

Fall 1983 and Fall 1984: some received unemployment insurance (UI) benefits between Fall and Spring terms, while others did not

EDD denied claims, arguing “reasonable assurance” of work

Higher levels of appeal within EDD upheld denial of claims

Administrative Law Judge (ALJ) upheld EDD denial of claims

Lecturers petitioned Superior Court for Writ of Mandate

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Cocal X: Unemployment rights Legal and financial resources provided by American Federation

of Teachers (AFT) Local 2121 and California Federation of Teachers (CFT)

Lead attorney for plaintiffs: Robert Bezemek

Chief researcher & paralegal: union leader Rodger Scott

Counsel for defendants (EDD): Attorney General and 2 AAGs

Superior Court used the independent judgment test to determine whether EDD’s decision was proper.

Superior Court decision overturned EDD agency decision.

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Cocal X: Unemployment rights EDD appealed this decision to the Court of Appeals of

California, First Appellate District, Division Four on 2/1/89

Appellate Court reviewed the Superior Court findings, rather than the Agency’s decision and upheld it:

Found that the statute defined “reasonable assurance” to include “an offer of employment made by the educational institution, provided that the offer or assignment is not contingent on enrollment, funding, or program changes”

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Cocal X: Unemployment rights EDD incorporated the Cervisi decision into practice via

Directive No. 89-55 UI on 7/20/89.

Major points:

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Cocal X: Unemployment rights Prior to Cervisi: when determining whether a non-tenured,

hourly instructor had “reasonable assurance”, they applied principles in Russ decision: reasonable assurance found to exist even in case of inadequate funding as long as there was a history of individuals in that classification working under the same conditions.

These individuals who are employed by K-12 schools have generally attained permanent civil service status and are assured of employment if they have not been given appropriate notice of termination.

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Cocal X: Unemployment rights Effect of Cervisi: Such individuals are not subject to

disqualification under the provisions of statute 1253.3 if the offer of employment (whether made orally or in writing) contains the proviso that the employment is contingent on class enrollment or funding.

EDD 1253.3(g): For purposes of this section, “reasonable assurance” includes but is not limited to, an offer of employment or assignment made by the educational institution, provided that the offer or assignment is not contingent on enrollment, funding, or program changes.

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Cocal X: Unemployment rights For these reasons, it is important that collective bargaining

agreement and/or term appointment letter contain language on contingent nature of appointment

Having a multi-year appointment (eg., in the California State University (CSU) a revolving, contingent 3-year appointment) does not establish reasonable assurance of future work

A verbal assurance from your Chair is not reasonable assurance

Seeing your name in the class schedule for next term is not reasonable assurance

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Cocal X: Unemployment rights

Further strengthening UI rights through Political Action & Legislative action

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Cocal X: Unemployment rights Then CA Assemblyman Leland Yee (San Francisco)

AB 2412: Unemployment insurance false information penalty

Amended Section 1142(b) of the state Unemployment Insurance Code to read: “If the director finds that any employer, officer, or agent of any employer, in submitting a written statement concerning reasonable assurance, as defined in…1253.3(g)… willfully makes a false statement or representation or willfully fails to report a material fact concerning the reasonable assurance of that reemployment,…assess a penalty… not less than two nor more than 10 times the weekly benefit amount of that claimant.”

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Cocal X: Unemployment rights In response to AB 2412, the CSU Chancellor’s office issued

Technical Letter HR/Benefits 2005-24:

It reiterates EDD statute 1253.3(g) for all AVPs, Deans, Human Resource Directors, and Benefits Officers, and further states:

“Part-time temporary faculty with conditional appointments do not meet the definition of “reasonable assurance.” Therefore, these employees would be eligible for UI benefits between academic terms, even if they have multi-year contracts” (emphasis added)

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Cocal X: Unemployment rights Continuing threats to UI benefits for faculty on contingent

appointments in California:

1) a 12.5% unemployment rate in 2010; highest since Great Depression

2) Unemployment rate currently 10.8; 3rd highest after Puerto Rico and Nevada

3) Payroll tax of employer which supports UI benefits goes up with increase in claims: “normal” CSU cost = $2 million/year; 1st quarter in 2010, UI costs had risen to $5.2 million

+States and employers are attacking unemployment rights:

The standard # of weeks of UI eligibility = 26 weeks

Three states (Michigan, South Carolina & Missouri) reduced the eligibility period to 20 weeks in 2011, a 23% reduction

Arkansas reduced eligibility to 25 weeks in 2011, a 4 % reduction

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Cocal X: Unemployment rights under attack (continued) CSU contracts with Equifax (nee: TALX), a company that

tries to reduce employer’s unemployment liabilities by contesting claims; Equifax has a practice of misrepresenting “reasonable assurance” to EDD

https://www.talx.com/Solutions/Compliance/UnemploymentTax/

http://www.nytimes.com/2010/04/04/us/04talx.html

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Cocal X: Unemployment rights How do you gain and defend UI rights for faculty of contingent

appointments?

1) Educate your colleagues, via workshops, meetings, listserves

2) CFA web site: http://www.calfac.org

3) http://www.calfac.org/lecturers-council

4) http://www.calfac.org/post/information-lecturers-unemployment-benefits

5) http://www.calfac.org/pod/supplements-cfa-lecturers-handbook (Click on: Unemployment Rights Supplement Guide)

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Cocal X: Unemployment rights How do you gain and defend UI rights for faculty of contingent

appointments (continued)?

1) Engage the expertise of others, more experienced than you

2) If available, marshall the resources of educational unions and seek judicial remedy

3) The New Faculty Majority’s campaign

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Cocal X: NFM Campaign

1) Effort to compel the U.S. Secretary of Labor to issue a

directive to the States:

- instructing them that faculty on contingent appointments lack

“Reasonable assurance” and hence are eligible for UI benefits between academic terms

- Non-binding, but creates political opening for local activists to agitate for UI rights as in California under Cervisi

- July 2012: Judy Olson (CFA, NFM, NEA) engineered the NEA to support the NFM campaign; a major coup

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Cocal X: Unemployment rights Winning a right and defending that right are two different

things:

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Cocal X: Unemployment rights Even with the support infrastructure we have set up in the CFA,

there’s always the danger of a bad Administrative Law Judge (ALJ) decision.

this can be minimized by not going it alone (Cal-Poly Pomona example)

3 ALJ wins for three Lecturers at Cal-Poly Pomona due to CFA representation

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Cocal X: Unemployment rights

Conclusions UI benefits are a labor issue

Applying for UI benefits asks the institution to acknowledge the contingent nature of your appointment

Applying for UI benefits faces the institution with a fundamental decision: keep paying increasing UI costs or provide non-tenured faculty with a contract worth the paper it’s printed on – one with structural job security

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Cocal X: Unemployment rights

And through smart, thoughtful, grass-roots organizing and collective action, it

is possible to achieve UI benefits eligibility for Lecturers, Adjuncts,

Sessionals, Non-tenured faculty – whatever you call yourself – in a state

or province near you!

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Cocal X: Unemployment rights Jonathan Karpf: jkaprf@calfac.org/ 408-398-9449

San Jose State University CFA Lecturer Representative and Faculty Rights specialist

CFA statewide Associate Vice-President for Lecturers – North

CFA statewide bargaining team member

CFA statewide Representation Committee member

CFA Statewide Pension and Health Benefits Committee member