Unemployment Insurance and Part-Time Faculty
Summer is almost upon us, which can provide an opportunity to rest and regenerate after a long academic year. For part-time faculty, however, the summer break can also be a period of profound economic uncertainty. The contingent and often sporadic nature of part-time employment means that many adjunct faculty make barely enough to get by, even during the Fall and Spring semesters, and while some part-time faculty are offered assignments during the summer, many have little or no income during the long, hot break between academic years.
Part-time faculty in Los Rios, like in other community college districts across the state, are temporary employees. Although the preference system that the LRCFT has negotiated into our contract (Article 4.10.6) provides certain “rehire” rights, part-time faculty are never truly guaranteed an assignment. If you are a part-timer, your employment with Los Rios effectively ends when each academic term ends, even if your chair or dean has offered you work for the following term, and even when you have received a Tentative Schedule (sometimes called a TCS). These offers are never guaranteed until after the start of the new semester, and it is even possible to lose an assignment once the semester has started.
The lack of assurance of future work makes life uncertain for part-time faculty. One small silver lining to this cloud, however, is that, under California unemployment law, part-timers are able to apply for unemployment benefits during the breaks between academic terms if they do not have sufficient income from other sources that would disqualify them from eligibility. If you are a part-time faculty member, it is in your interest to apply for unemployment as soon as the semester officially ends (e.g., May 22 this semester).
The Legal Basis for Eligibility
Part-time faculty are eligible for unemployment benefits between semesters because they do not have a “reasonable assurance” of employment from one semester to the next. Under the California Unemployment Insurance Code (UIC), educational employees who have a “reasonable assurance” of work in an upcoming semester are not eligible for benefits. Under UIC §1253.3 (g), however, an offer of employment or assignment at an educational institution is only defined as a “reasonable assurance” of employment “provided that the offer or assignment is not contingent on enrollment, funding, or program changes.” Because part-time faculty assignments are always contingent on these factors, and because assignments can be altered or removed at the last minute if any or all of these circumstances change, part-time faculty are eligible for unemployment between semesters.
This principle was affirmed by a California Court of Appeals decision in the 1989 case Cervisi v. Unemployment Insurance Appeals Board. In the Cervisi case, adjunct faculty members from San Francisco City College applied for unemployment benefits for the period between Fall and Spring semesters but were denied by the Unemployment Insurance Appeals Board, which argued that they had a reasonable assurance of work the following semester. A trial court, however, overturned the Board’s ruling, and the Appeals Court agreed with the trial court. The Appeals Court concluded that “[a] contingent assignment is not a ‘reasonable assurance’ of continued employment within the meaning of section 1253.3,” and ordered the payment of unemployment benefits to the claimants.
All of this applies whether you’re a brand new part-time faculty member without preference, or a 20-year veteran with the highest level of preference under our faculty contract. The fact that you might have received an assignment for many semesters in a row still does not guarantee you work next semester. The Court of Appeals recognized this fact in the Cervisi decision.
Be Ready for the EDD
This legislative and legal history has not been included simply for the sake of interest, but rather to arm you with the appropriate knowledge for dealing with unemployment claims. Despite the fact that Cervisi has been the controlling decision in this area of California law for well over 30 years, it is still not uncommon for the California Employment Development Division (EDD) to deny unemployment benefits to adjunct faculty during the periods between academic terms. Faculty sometimes receive denials based on the EDD’s assertion that they are on a “recess” and that they have a reasonable assurance of returning to work the following semester and are therefore ineligible for benefits. Citing the relevant sections of the Unemployment Insurance code and the language from the Cervisi decision should be part of any appeal against such a denial of benefits.
Part-time faculty are not on a recess between academic terms in the California community colleges. Their employment ends on the last day of the semester, and under §1253.3 (g) and Cervisi, any subsequent employment with the District is contingent on enrollment, funding, or program changes, and is therefore not a reasonable assurance of work. Be ready to tell the EDD this if they deny your unemployment claim. Make clear that you are not on a recess and that under the Cervisi decision you have no reasonable assurance of future work.
If you apply for unemployment benefits and are denied by the EDD, you don’t have to confront the issue alone. The LRCFT is here to support its members. The Union can help you formulate a written appeal to a denial of benefits, and we can also help to prepare you for, and accompany you to, an appeal interview with the EDD via teleconference or videoconference. If you have questions about the process or if you receive a denial of benefits from the EDD, please contact the LRCFT as soon as possible.
Good Records Make All the Difference
It is important to keep good records because the EDD not only denies benefits, but sometimes also issues retroactive denials and attempts to claw back money that has been distributed in prior years..
Last summer, the LRCFT assisted a faculty member who was denied benefits and who received an ominous “Notice” from the EDD alleging that he was “not eligible to receive benefits” for a previous period (December 2020 to June 2021) because he allegedly earned more during some periods than was allowable for receiving full weekly benefits. To make matters worse, the EDD suggested that the alleged “overpayments” were the result of dishonesty on the part of the faculty member, and threatened not only to take back the money but to bar the faculty member from applying for benefits for up to three years if it was not repaid.
With the LRCFT’s help, the part-time faculty member submitted his formal appeal to the EDD in late June. He had to wait until early September to receive the “Notice of Hearing,” and the hearing itself was held in early October. He received no unemployment benefits during the time the appeal was pending.
At the hearing, held over the telephone, an Administrative Law Judge found the EDD’s “available information” to be inaccurate based on the payment records the part-timer submitted, which included his Tentative Schedules (TCSs) and copies of the academic calendars for Fall 2020 and Spring 2021. However, the most salient defense the part-timer and his Union representative provided was that he was entitled to a presumption of innocence unless evidence was presented indicating otherwise. Since the EDD, following its usual practice, did not send a representative to the hearing, the presumption of innocence stood and the faculty member prevailed.
Justice Delayed
The problem here is justice delayed. Unemployment benefits are meant to assist you when you’re not working or working less than usual. This “win,” coming as it did well after the Fall semester began, was too little, too late. Although the faculty member received the money he was entitled to, it was not available at the time when it was most urgently needed.
Be Prepared
If you find yourself having to appeal benefits denial or an alleged EDD overpayment, you will be better prepared to fight it if you take some precautions:
- State clearly that you were not on a “recess”; that your offer of work is, or was, contingent on enrollment, funding, or program changes; and that you therefore don’t have “reasonable assurance” of work.
- Save your payroll printouts.
- Save your TCSs.
- Make copies of the academic calendar for each semester that you work. Here is where you can find previous year’s academic calendars: https://losrios.edu/admissions/academic-calendar
- Make sure you file your appeal within 30 days of the date on the EDD’s “Notice of Determination.”
If you need help with your appeal, the LRCFT provides free assistance to all Union members. Contact the LRCFT office or one of your campus representatives for help.