+ gaining and defending unemployment rights for contingent faculty in the u.s. jonathan karpf cfa...
TRANSCRIPT
+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.
+
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
+
Cocal X: Unemployment rights
What made this possible?
+
Cocal X: Unemployment rights
Education of rights by faculty activists
High levels of unionization in California
Helped by lower levels of unemployment than currently
+
Cocal X: Unemployment rights
The Cervisi Decision (1989)
+
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
+
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.
+
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”
+
Cocal X: Unemployment rights EDD incorporated the Cervisi decision into practice via
Directive No. 89-55 UI on 7/20/89.
Major points:
+
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.
+
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.
+
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
+
Cocal X: Unemployment rights
Further strengthening UI rights through Political Action & Legislative action
+
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.”
+
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)
+
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
+
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
+
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)
+
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
+
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
+
Cocal X: Unemployment rights Winning a right and defending that right are two different
things:
+
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
+
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
+
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!
+
Cocal X: Unemployment rights Jonathan Karpf: [email protected]/ 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