What You Should Know About The Process
by Sarah Adams, Olympic College
Community and Technical Colleges are reimbursable employers. That means, the state of Washington pays them up front for the unemployment benefits the schools expect to pay out. Under current Washington law, whatever monies the schools don’t pay out in benefits gets rolled into a general account for the school’s discretionary use. Briefly, whatever they don’t use, they get to keep. This system gives schools incentive to regularly fight unemployment claims, legitimate or otherwise. Schools hire out-of-state third parties to represent them and it costs them little to do so.
Under usual circumstances, UI benefits may be appealed on the basis of “reasonable assurance,” suggesting adjuncts have a guarantee of a work assignment in the fall. However, if you can be bumped by a full-timer or lose your assignment due to enrollment, funding, or program changes, you do not have reasonable assurance according to the state’s definition of the phrase. While the burden of proof lies on the employer, it is best to prepare for the hearing. Also, UI hearings are handled on a case-by-case basis. That is, knowing an adjunct in identical circumstances whose benefits have not been appealed is considered not relevant to your hearing.
Notice of hearing
If your UI benefits are appealed by the school, you will be sent a notice of hearing. The notice will include an information packet that should assist you in preparing for the hearing as well as the name and address of the employer’s representative. Also included in the notice packet is the evidence against you thus far -- the reason the school is appealing your benefits. There will be a questionnaire sent by the Employment Security Department to your employer. Oftentimes, it will simply be stamped that the adjunct has reasonable assurance. Other pieces of evidence may be included. This is advance notice of the opposing side’s arguments. Be sure you can address each piece of evidence as you prepare. Finally, one strategy that the employer’s representative will often utilize is sending a last-minute exhibit via Fed-Ex. This is done purposely so that you have little time to prepare a defense against such an exhibit (so be prepared for anything). If you don’t receive the exhibit, it is grounds for a continuance, which prolongs a difficult situation. Creating the possibility of a continuance is also done purposely -- the more difficult the hearing process is, the less likely adjuncts will want to apply for UI benefits for fear of having to go through the hearing again.
Preparing for the hearing
You can send your own exhibits. You must send them to both the judge and the school’s representative (usually a professional outfit hired by the school working out of state), whose address is listed on the hearing notification (usually a P.O. Box). Things that are good to send would be pages of the current bargaining agreement that show that full-timers can bump adjuncts or that classes can be cancelled after the quarter has begun. Other evidence would be emails from other adjuncts in your department that explain that they have lost assignments due to enrollment, program changes, & funding, or were bumped by a full-timer. While the employer’s representative will object to having other adjuncts’ information used in your case, since it technically is not relevant, the judge usually allows you to discuss such examples. Whatever evidence you wish to discuss must be sent as an exhibit.
- Send everything with your Docket Number on it.
- The judges' office is notorious for not shuffling the papers to the right people in a timely manner. Send things promptly and with a signature upon receipt notification.
- You can have your own witnesses, such as a union representative who can testify as to the number of adjuncts who lose employment each quarter and to the lack of job security. If you do, you must let the judge know up front you have someone present. In order to have a witness, you will need to use a speaker phone. Otherwise, the judge may not like having a person who has not been able to hear the proceedings testify--it depends on the judge. One solution is to call from the local union office.
The hearing: Preliminary information
- The hearing will be held telephonically. You must use a landline; cell phones and payphones are not allowed. The hearing will be recorded by the judge. Present at the hearing will be the judge, the employer’s representative, an administrator from the school (usually someone from Human Resources but administrative assistants may also testify), and you.
- The judge is your audience. Be respectful: say “your honour” and “yes, sir” or “yes, ma’am.” The judge will walk you through the hearing process. If you are ever unsure about the proceedings, ask the judge. The judge will choreograph the hearing and tell you what is going to happen next.
- After the swearing in, the judge will review the exhibits and ask both sides if each has all the evidence and if there are any objections to any of the exhibits. If one party does not have everything, the hearing may be postponed. That is up to the judge. Be sure to have in your possession the signature receipt of anything you sent in order to prove it was received.
The hearing: Opposing arguments
- The first part of the hearing is when the employer’s representative will present his/her case. The third party entities representing the schools try to discredit you, sometimes becoming contentious.
- The usual arguments used against adjuncts are as follows:
- 1) Because the school is a 9-month school, summer is considered a normal break akin to a holiday, one that the school does not have to pay adjuncts for according to state law. Were the school designated as a 12-month school and the adjunct didn’t receive work, then the school would have to pay. (Designations of 9-month and 12-month schools come out annually and are posted.) However, it doesn’t matter what the school’s designation is. If the adjunct has no assurance of work in the fall, then feasibly, he/she is unemployed as of summer.
- 2) The main argument used against adjuncts is that they have “reasonable assurance” to work in the fall. Several pieces of evidence can be brought in to try to establish reasonable assurance. One piece of evidence may be memos that the school puts out letting adjuncts know that they have been awarded reasonable assurance. Contracts may be used in this way as well. Be aware that just saying an adjunct has reasonable assurance does not meet the standard of the state code. Further, often these memos or contracts contain language such as “Teaching assignments are dependent upon student enrollments and are not guaranteed.” This violates the state definition of “reasonable assurance.” (See RCW 50.44.053 below.) Be sure during the hearing to point out such language. Another way the school attempts to establish reasonable assurance is pointing out that the adjunct’s name has been published in the course catalogue assigned to a class. However, colleges also publish the fact that schedules are subject to change to avoid litigation with students if a class is cancelled. (It says something along the lines of “Changes in classes, room locations, or instructors may occur after the schedule goes to press.”) Be sure to submit such disclaimers as an exhibit. Finally, sometimes email exchanges between instructors done via the school email system can be submitted as evidence against adjuncts. For example, a discussion between the adjunct and another faculty member about teaching in the upcoming quarter can be submitted to suggest that the adjunct felt the class would go. Remember, preparing for a class and actually teaching it are two different things.
- The representative will start with the administrator, asking questions about your work history and also about enrollment levels. You also have the right to question the school administrator who will be part of the hearing and will testify against you. While you can ask the administrator about other adjuncts who have been assigned classes that were later cancelled, it is likely that the administrator will be unable to answer those questions. Departments assign classes and the administrators who testify against you usually don't get those details. However, there are questions that administrators should be able to answer: Can an adjunct lose an assignment due to enrollment, funding, or program changes? Can an adjunct be bumped by a full-timer? Can a class be cancelled even after the quarter has started? How many classes were cancelled last quarter? This is not an exhaustive list, just a starting point. Make sure that you have your questions prepared before the hearing.
- Next, the employer representative will ask you questions about your employment history. Be succinct in your answers. You will have time to present your case later. However, for some things, it is better to elaborate rather than give a yes or no answer. For example, if you are asked by the school’s representative, “Isn’t it true that you lied to the Employment Security Department that you didn't have reasonable assurance when you had a job assignment for the fall?” Instead of saying simply "no," it's better to elaborate, talking about how assignments are handled.
The hearing: Presenting your argument
After the employer representative has presented his/her side, it is your turn. Now you get to talk about the evidence you have brought: contracts, memos, past experiences of losing assignments. Be sure to point out any language that indicates the contingent nature of job assignments. Again, be prepared. Have your information written out prior to the hearing. The judge may ask you questions to clarify points. The burden of proof is on the school but make sure you have the RCW code with you. It’s unusual for a judge not to know about the law pertaining to adjuncts, but it is also not unheard of. The following is the presumptive code:
"Reasonable assurance" defined — Presumption, employees of educational institutions.
(1) The term "reasonable assurance," as used in RCW 50.44.050, means a written, verbal, or implied agreement that the employee will perform services in the same capacity during the ensuing academic year or term as in the first academic year or term. A person shall not be deemed to be performing services "in the same capacity" unless those services are rendered under the same terms or conditions of employment in the ensuing year as in the first academic year or term.
(2) An individual who is tenured or holds tenure track status is considered to have reasonable assurance, unless advised otherwise by the college. For the purposes of this section, tenure track status means a probationary faculty employee having an opportunity to be reviewed for tenure.
(3) In the case of community and technical colleges assigned the standard industrial classification code 8222 or the North American industry classification system code 611210 for services performed in a principal administrative, research, or instructional capacity, a person is presumed not to have reasonable assurance under an offer that is conditioned on enrollment, funding, or program changes. It is the college's burden to provide sufficient documentation to overcome this presumption. Reasonable assurance must be determined on a case-by-case basis by the total weight of evidence rather than the existence of any one factor. Primary weight must be given to the contingent nature of an offer of employment based on enrollment, funding, and program changes.
- Finally, be prepared to talk about your job log. If you haven't done all your job contacts, the Employment Security Department may deny your claim. The judge WILL ask you questions about your job search and you WILL be required to have the log with you at your hearing. The school's representative will also ask you questions about your job search -- questions like, "Do you have a car? Do you have a driver’s license? Do you have insurance? How far are you willing to travel to get a job?" Remember, the questions posed by the school representative will be intended to discredit your search. Keep calm.
Closing arguments. You have the right to give closing statements. Make sure you prepare a one-paragraph statement that summarizes your main points, your evidence.
After the hearing, the judge will mail you his/her determination of the case, usually within two weeks. Both you and your employer have the right to appeal the determination. If you want a copy of the tapes/CDs, call the Records Center at 360-753-5134. (They may ask you to fax your request with your signature to fax # 360-664-8129.) In order to request your audio tapes/CDs, you must have your docket number. The tapes/CDs are free of charge; no fee is involved. Having the tapes/CDs is very useful in understanding the hearing process, especially for other adjuncts. It is also useful for the union to know what happens in these proceedings.
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For additional resources in preparing your hearing, see AFT Washington's FAQ on Unemployment Law for Part-time Faculty on this page.