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Cocal IX: 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
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Cocal IX: Unemployment rights
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Cocal IX: Unemployment rights
What made this possible?
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Cocal IX: 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 IX: Unemployment rights
 The
Cervisi Decision (1989)
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Cocal IX: Unemployment rights

Plaintiffs: Gisele Cervisi, Muriel Bartholomew, and other parttime, 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 IX: 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 IX: 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 IX: 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 IX: 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 the 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 IX: 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 IX: 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 IX: Unemployment rights
Further strengthening
UI rights through
legislative action
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Cocal IX: 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 IX: 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 IX: Unemployment rights

Continuing threats to UI benefits for faculty on contingent
appointments in California:
1)
a 12.5% unemployment rate; highest since Great Depression
2)
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
3)
CSU contracts with TALX
4)
https://www.talx.com/Solutions/Compliance/UnemploymentTa
x/
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Cocal IX: Unemployment rights

http://www.nytimes.com/2010/04/04/us/04talx.html
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Cocal IX: 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.html
4)
Engage the expertise of others, more experienced than you
5)
If available, marshall the resources of educational unions and
seek judicial remedy
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Cocal IX: Unemployment rights

Even with the support infrastructure we have set up, there’s
always the danger of a bad ALJ decision; this can be minimized
by not going it alone (Cal-Poly Pomona example)
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Cocal IX: 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 nontenured faculty with a contract worth the paper it’s printed on –
one with structural job security
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Cocal IX: Unemployment rights
And through smart, thoughtful, grassroots 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 IX: 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