Unemployment Law for Part-time Faculty, revised Aug. 2017

Share This

Table of Contents

Introduction
Pertinent laws
How do I know I am eligible?
What does "reasonable assurance" mean and do I have it?
The 9-month/12-month distinction
Job Search Requirements
Hearings: How can I prepare myself should my claim be challenged by a college asserting that I do have reasonable assurance?

Will my claim be affected by Summer Health Care Settlement or recent changes in the overall unemployment law?

 

  • summer health care settlement
  • changes in the 2003 unemployment law
  • changes in the 2005 unemployment law
  • changes in the 2006 unemployment law
Who can help me?
List of 9 Month/12 Month College Designation for Unemployment

 

Introduction

 

This information applies to you if you are a part-time instructor (counselor or librarian) working at any of the 34 community or technical colleges in Washington State and are interested in knowing whether you are eligible to receive unemployment benefits between quarters or over the summer. This document will help those who have applied for benefits over the summer quarter or during breaks between any quarters during the year and are experiencing difficulties or simply have questions about how to proceed.

The AFT Washington has been successful in creating a special niche in statute and in the Washington Administrative Codes for part-time faculty at community and technical colleges. This is why it is always important to identify yourself clearly as a part-time instructor at a two year college. We have the law on our side in getting favorable decisions for unemployment insurance benefits during breaks between quarters and during quarters when such faculty are unemployed. You need to know what this law is and you need to understand what it means. Since the laws have changed several times in the journey to the current law, the job service personnel are sometimes not as “up to speed” on the situation as you will be. This document will give you the tools to make sure you are properly treated and the correct statutes are administered in your case.

How colleges pay for unemployment benefits:
Colleges are "reimbursable employers" which means that they do not pay unemployment tax on an ongoing basis. When claims come through, the Employment Security Department pays them out and the colleges then reimburse the department. The legislature gives the colleges $1 million biennially to help defray the cost of unemployment. Since the money is not dedicated, it does not have to go back to the state if it is not used. That gives colleges extra incentive not to pay UI claims, so they can keep it for other things. You are not causing the colleges undue hardship by getting UI benefits. It is within the colleges’ power to avoid UI costs by giving true annual or multi-quarter contracts. They, by and large, refuse to do this, hoping to have it both ways—keep the flexibility and avoid UI costs at the same time.

[Return to Top]

 

 

Pertinent laws: RCW 50.44.050, 50.44.055, 50.44.053

AFT Washington was responsible for positive changes in the law governing unemployment for academic employees as of April 19, 2001. This intent language in RCW 50.44.055 was an important addition.

RCW 50.44.055 Intent -- Reasonable assurance, application to employees of educational institutions.
The legislature finds the interests of the state and its citizens are best served by a strong community and technical college system. As described by their establishing legislation, these two-year institutions are an independent, unique, and vital section of our state's higher education system, separate from both the common school system and other institutions of higher education. Paramount to that system's success is the attraction and retention of qualified instructors. In order to attract and retain instructors, those who are subject to uncertainties of employment must be provided assurance their economic needs are addressed. Over time, a change in hiring patterns has occurred, and for the last decade a substantial portion of community and technical college faculty are hired on a contingent, as needed, basis. That contingent nature distinguishes them from the more stable, majority employment found in the common school system and in the other institutions of higher education. Contingent assurances of future employment are often speculative and do not rise to the level of other forms of assurance. As such, assurances conditioned on forecast enrollment, funding, or program decisions are typically not reasonable assurances of employment.

More specifically, in RCW 50.44.053 (sections 2 and 3 being revised in 2001) the language reads as follows:

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.(my underlining)

* This is another way of saying the community and technical colleges. This provision was specifically drafted so as not to specifically mention part-time faculty but to draw the parameters such that that is who it means. The Intent Language, RCW 50.44.055, is an eloquent articulation of the true basis for the legal changes.

This law is still fully intact! Nothing has changed the eligibility for part-time faculty—even the sweeping changes from last year’s (2003) unemployment “reform” or, as some colleges are trying to make people believe, the Mader summer health care settlement. You need to be very clear that neither of these events has changed the basic laws surrounding part-time faculty and your right to apply for benefits. But each will have some impact on you for different reasons. The details follow.

 

[Return to Top]

 

How do I know I am eligible?

These are the general eligibility criteria for anyone applying for UI benefits and how they apply to part-time faculty:

  1. Have 680 hours working in your "base year." Base year means the first four quarters of the last five completed calendar quarters. Calendar quarters are divided into three months each, so January, February, March is the first quarter, etc. Hours are calculated for part-time faculty based on the formula from the law AFT Washington passed in 1996. Divide the number of class hours by the number of full-time class hours that constitutes the full-time load (which is usually 15), and translate that percentage back into hours based on a 35-hour week and on the amount of weeks in each quarter. A 10-hour part-time load will come out to be 23 hours per week. Then you multiply that out to the number of weeks in a quarter and add all the quarters together to give you your total number of hours. The college is supposed to report your hours in that fashion, but don't expect them to do it automatically. And make sure that you let the staff at the job service center know that since you are a part-time faculty member, your hours need to go through the special formula that properly recognizes the full spectrum of your work. In addition, should your hours not reach the 680 by using the formula above, you can also self-document hours. You can do that up front or, if you are denied on the basis of not enough hours, you can appeal the denial using self-documented hours.

  2. Be unemployed for no cause of your own.

  3. Be actively seeking work, able and willing to work, and available for work during the time you are on unemployment. This requires you to make several contacts per week at other colleges or educational institutions or other work for which you are trained. You must make at least three contacts a week or an on-site visit to your job service center for employment counseling. These contacts will be audited and taken very seriously—more now with the 2003 changes.

  4. Job Search Requirements:

     

    As of 2003, the job search requirements that accompany your unemployment benefits, have been more strictly enforced than ever before.  Claimants who are receiving benefits must make at least three job search contacts a week or make one on-site visit to your job service center for employment counseling.  This must be documented and there is a job search form that you will be asked to fill out.  Random audits are made and if it is discovered that you have been lax in your obligation to make contacts, they can and will deny you further benefits.  So this is an important piece of maintaining your benefits, should you get them.

    You are not required to look for work in areas for which you are not reasonably trained or prepared or to look for work in geographic areas that are unreasonably distant.  We recommend that you make a portfolio with resume and letters of recommendation, etc. and simply have it ready as attachments to be sent by e-mail.  You are not obligated to find work, or to only apply for open positions;you are only obligated to make good faith contacts.  That means you can call three colleges and ask if they have work, or you can simply send your resume and request for employment by e-mail.  Since the times you will be applying are usually breaks between quarters, the likelihood that there will be work anywhere in the college world is, as we all know, nil.  Yes, you may be calling the same college within a relatively short period of time.  There is nothing that says you cannot do this for purposes of your job search.  You just have to make the contacts and they have to more or less pass the “straight face test, so take it seriously. However, the good faith search shows that you are actively seeking and available for work and must be done. 

     

    Visit the State Board for Community and Technical Colleges website at and link to their "job bank" at http://www.sbctc.ctc.edu/JobOpp/default.asp. This job bank website was the result of legislation passed with State Senator Jeanne Kohl-Welles' help several years ago and gives part-timers and others a look at job availabilities in the college system. If you work part-time, log on to this job bank, and then make contacts to any of the openings for which you think you qualify. You should be able to use that as one of your required three weekly job search contacts.

     

    Similarly, you can go to the WorkSource employment link at https://fortress.wa.gov/esd/worksource/Employment.aspx for another source of job openings that you can apply for on-line and use as documentation for your job search.

     

    The Employment Security Department website at http://fortress.wa.gov/esd/portal/ has links to information and services for job seekers, including a link to WorkSource.

    Always remember, as well, that if you receive notification of a denial of benefits at any point along the way, do not stop filing your claims and do not stop the job search contacts and upkeep of this documentation.  Denials of benefits at one juncture can be appealed and you can win at a higher level.  When that happens, your stopped benefits will all be paid retroactively.  If you give up and/or stop the job search it could negatively affect your benefits when the dust settles on your case.

  5. Specifically for education employees-- Have NO contract or "reasonable assurance" of continued employment in the next successive quarter.

     

Part-time faculty are eligible for unemployment benefits in three ways: One way is if you are given no classes during a quarter such as winter, fall, or spring, and in some colleges, summer as well (see below—9- and 12-month colleges). The second way is if you apply for the breaks between quarters. If you apply for breaks between quarters, you are subject to the rules about "reasonable assurance" in the upcoming quarter. If you apply for a quarter in which you are unemployed, you should receive the benefits based simply on whether you are or are not working that quarter (if, for example, you are not given classes for the fall quarter). The third way is if you are teaching less hours in one quarter than you usually do (in the preceding quarter at least).

 

 

[Return to Top]

 

 

What does "Reasonable Assurance" mean and do I have it?

Legally, reasonable assurance is "less than a contract or written agreement, but more than a mere possibility of future employment." For all intents and purposes, the kind of employment status that you have as a part-timer at a community or technical college in this state is based on quarter-to-quarter contracts that do not span more than one quarter at a time and are truly contingent on any number of things. Your employer does not have to rehire you, even if they have indicated in some way that you will be coming back. The college can promise to give you classes but if those classes are canceled or if you are bumped because full-time faculty's classes are canceled, they are not obligated to explain themselves or recompense you or do anything at all. They can say you are coming back to prevent you from getting UI benefits, and if you do not come back, they are not culpable. Just because you have been told you will be teaching, just because you have chosen your books for your class, just because your name appears on a schedule, just because you have come back for a number of quarters, that does not mean you have reasonable assurance.

Now that the law clearly states that conditioned offers of employment are presumed not to be reasonable assurance, part-time faculty--unless under a more binding form of multi-quarter agreement--should assume that they do not have reasonable assurance.

The 9-month/12-month distinction. If you applied for benefits during the summer quarter, there may be a question about whether summer quarter is a term or a break between two successive terms. That will be answered by whether your college is considered a 12-month or a 9-month college (see designations at the end of this document), and that determination is made every year by the Employment Security Department at the end of the spring quarter. (That determination can change from year to year). If you are in a 12-month college and have no classes for summer quarter (or reduced classes), you should be eligible for benefits without regard to whether you have reasonable assurance in the fall. You need to specifically say to the first level of contact you make that you are not subject to the reasonable assurance issue in the fall—you are only subject to the issue of whether you are or are not employed in the summer term. If you are in a 9-month college, the issue becomes whether you have reasonable assurance for continued employment in the fall quarter.

The Employment Security Department prepares the list every year in June. Just because your college was a 9-month college last year doesn’t necessarily mean it will be that this year. As soon as we know, we will post it on this website so you can see for yourselves.

In a nutshell, this means that most of the time when you apply, you are dealing with reasonable assurance in the upcoming quarter. But if you are applying during the summer and are not teaching summer term, you should have an easier time of getting your benefits. If you worked in the summer term and then apply for the break between summer and fall quarters, you will again be subject to whether or not you have reasonable assurance in the fall.

PLEASE NOTE: If you receive benefits for the summer term, do not let the ESD cut your benefits off until you have begun work again in the fall—if you do. There have been cases in the past where benefits have been cut off when the employee received a letter from the college assuring that he/she would get classes in the fall. But we have clarified that with the ESD’s own legal staff that someone deemed unemployed in the summer is not subject to the arbitrary breaks between summer term and fall term and thus should receive benefits up until rehired—not up until told there is reasonable assurance of rehire. If this happens to you, get in touch with the AFT Washington office and we will try to fix the mistake.

[Return to Top]

 

Tips About Applying

Apply for benefits if you have been teaching for at least two or three quarters. Assume you do not have reasonable assurance because your offer is conditioned on enrollment, funding, or program changes. Call the job service center of your choice and

  1. Make it very clear that you are a part-time faculty at a community/technical college.

  2. Do not say that you have a contract (unless you really do) or reasonable assurance or even an offer of employment without qualifying that by saying, but since I am a quarter-to-quarter hired part-time faculty, my offer is always conditioned on enrollment, funding, or program changes --or something to that effect. Several colleges have bargained annual contracts for some part-time faculty who are given a real contract that commits the college to providing classes or compensation for loss of classes. If you have one of those, then you DO have a contract.

  3. In filling out the employee questionnaire, be very sure not to indicate in any way that you have an assurance or reasonable assurance or any real reason to believe that you will be rehired—this will be used against you and automatically trigger a denial. Say “no” to any question like that and then qualify it by saying you are hired quarter by quarter and your rehire is always conditioned on enrollment, funding, or program changes. This is absolutely true and will cut through the ambiguity of the multiple questions around this issue.

  4. Have your hours figured out ahead of time and be prepared to tell the Job Service Center staff that there is a special formula that bases your hours on the percentage of full-time load. If you don’t come up with the requisite 680 hours, refer back to #1 in the criteria for eligibility to the “self-documentation” option.

  5. Even if the Employment Security Department grants you benefits, do not be surprised if your college appeals. When and if that happens, do not panic. Contact names, numbers, and e-mails are listed at the end of this document.

  6. Do not give up, or assume that the first denial or challenge means that you are not eligible. You have the right to appeal as well—all the way up to the Supreme Court. Many negative decisions get overturned in the final analysis, but if you give up, you will for sure not get your benefits.

[Return to Top]

 

 

Hearings:
How can I prepare myself should my claim be challenged by a college asserting that I DO have Reasonable Assurance.

 

First of all, as soon as you get notification that your benefits have been stopped because of a challenge, you need to request an appeal. Do not let the timelines lapse to appeal denials. If your case goes to a hearing, you will want to be prepared to state your case clearly. Remember that the burden of proof is on the employer to document that reasonable assurance exists, by showing that your offer of employment is not conditioned on enrollment, funding, or program changes. Any paperwork that you have that qualifies your employment offer is germane. Anything in the bargained contract at your college that refers to the employment status of part-time faculty is germane. Unless you have been given one of the above-mentioned annual contracts, then the following statements are probably true for you. Be prepared to state your case clearly:

  • You are a part-time instructor and you are hired on a quarter-to-quarter basis.

  • You do not have an annual contract or any expectation of continued employment and your employer makes that very clear to you (if your bargained contract refers to the expectations of hiring for part-timers, or if you have any contract with contingency language, read it).

  • Even if the college sends you a letter saying you have “reasonable assurance” that will be contradicted more chances than not by another contract document when you begin working. Just stating that you have reasonable assurance with no “proof” is not deemed sufficient documentation to overcome the presumption of your lack of reasonable assurance.

  • You are paid for the classes you teach or the hours you teach and receive no compensation for any time beyond that.

  • Unlike for tenured faculty, the college has no obligation to give you courses, even courses they say you will have--even if they make it seem very sure. The fact that you may be teaching classes now does not mean that you had reasonable assurance, and it certainly doesn't mean that you were not unemployed.

In general it is always best to be polite, sincere, patient, and credible at all levels of this process--no matter how frustrated you might get.

[Return to Top]

 

Will my claim be affected by Summer Health Care Settlement or recent changes in the overall Unemployment Law?

Summer health care settlement:
A recent settlement gives certain part-time faculty employer paid health benefits over the summer whether they are working or not. Those part-timers working half time or more of a full-time load in each of three quarters are eligible for these benefits. There is no necessary connection or mutual exclusion between receiving the newly won summer health benefits and receiving unemployment insurance benefits. The attorneys who won the settlement have clarified for us that the terms of the settlement bestow no guarantee of employment or any penalty on the colleges for not re-employing part-time faculty who receive these summer health benefits. There are a number of reasons why we feel receiving UI at the same time as receiving health benefits is not mutually exclusive. One is that people are currently eligible and receiving benefits between quarters, such as fall and winter, when health benefits are continued without a break.

However, while the new settlement may not result in automatic disqualification from getting benefits, we suspect there will be an increased zeal on the part of the colleges to appeal and challenge benefits for those who receive summer benefits.

AFT Washington has discussed the health benefit changes with the Employment Security Department in Olympia and what effect they might have on the Department’s view of eligibility. They agree with us that no changes in the Department’s questionnaire to employers or employees will need to be made and that the existence of health benefits could, at most, be considered one of the various factors that colleges can use to try to overcome the presumption of no reasonable assurance. No presumption of reasonable assurance will exist by virtue of receiving the summer health benefits. And, as the law clearly states, “Primary weight will be given to the contingent nature of an offer of employment based on enrollment, funding, and program changes.”

Unemployment Law changes of 2003:
In addition, the changes made in the unemployment insurance system in 2003 have already taken effect as of January 2004. They do not affect eligibility in any way. It will affect your weekly benefit amount, however, as the Department will now use a three quarter averaging method, rather than a two quarter average—thereby potentially watering down the total hours if you worked less in one quarter. Next year, this will become even worse, as they will go to a four quarter averaging method.

Because federal guidelines require that unemployment insurance claims be adjudicated on a case-by-case basis, getting UI benefits has never been automatic—even in the best of times. We would not be honest if we didn’t warn potential applicants that you may be faced with college challenges and appeals and the upcoming summer of 2004 may be fraught with more such hardships than previous years. Still and all, our advice is to go ahead and apply anyway. There is no penalty for applying regardless of the outcome—except for the blood pressure increases and the time and trouble.

Unemployment Law changes of 2005:
The "four-quarter averaging" which would have drastically lowered weekly benefit amounts has been temporarily fended off in legislation passed during the 2005 session. For two years the averaging method will revert to the original "two-quarter averaging" which is much more beneficial.

Unemployment Law Changes of 2006:
This law makes permament the two-quarter averaging that was temporarily reinstated in the 2005 law.

 

[Return to Top]

Who Can Help Me?

If your claim is denied by the Employment Security Department or if the college challenges a claim, call your faculty union president or representative. AFT Washington is trying to train its leaders to help you at the local level.

However, after you have notified your local president, you may e-mail Nancy Kennedy at nkennedy@aftwa.org  or call 206-242-4777 ext. 14 for help. If she cannot help you, you will probably be referred to the services of the Unemployment Law Project. They may be able to help you and their services are pro bono. That number is (206) 441-9178.

 

[Return to Top]

 

9 Month/12 Month College Designation for Unemployment for 2017 -- updated 6/14/17

 

12-Month Designated Colleges:

Bates Technical College Renton Tech
Bellevue College Seattle Central
Clark College Seattle North
Clover Park Technical College Seattle South
Edmonds Community College Seattle Vocational Institute
Green River Community College Shoreline Community College
Highline Community College Spokance Community College
Lake Washington Tech Tacoma Community College
Olympic College Walla Walla Community College
Pierce-Steilacoom  

 

9-month Designated Colleges:

Bellingham Technical College Peninsula College
Big Bend Community College Pierce College - Puyallup
Cascadia Community College Skagit Valley
Centralia Community College So. Puget Sound Comm. College
Columbia Basin College Spokane Falls Community College
Everett Community College Wenatchee Valley Comm. College
Grays Harbor Whatcom Community College
Lower Columbia Comm. College Yakima Valley Comm. College

 

For quick information on commonly asked questions about applying for and receiving unemployment benefits, check out our Q&A section. You can download it and distribute to your members.