Nowhere does the Law of Unintended Consequences run more
rampant than in the field of taxation. That was clearly demonstrated at
the Internal Revenue Service's rule-making hearing on April 23, in the
agency's attempts to craft regulations to impose a steep tax on
employers who fail to provide employee health-care coverage required by
the Patient Protection and Affordable Care Act.
While most of the 25 other witnesses at the hearing represented
various employers or organizations, I testified in my personal capacity
as an interested citizen who happens to be an adjunct faculty member and
former IRS lawyer.
Distilled to their essence, the 1,200-word statute and its companion 36-page Federal Register
proposal to carry out the law provide loopholes giving financial
advantage to employers who classify their workers as part-time and/or
seasonal. So colleges have already begun to do just that.
Smaller colleges have additional reasons to reduce the hours that
adjuncts report. If counting under the "full-time equivalent" provisions
of the law yields fewer than 50 total employees, then the college will
not reach the "large employer" threshold, and thereby not be subject to
the punitive tax.
Moreover, adjuncts need not be counted at all if the college can
somehow classify them as "seasonal workers." In that regard, there seem
to be some guardian angels with adjuncting gigs, because the IRS's
proposed regulations state that "it is not a reasonable good-faith
interpretation of the term 'seasonal employee' to treat an employee of
an educational organization, who works during the active portions of the
academic year, as a seasonal employee." This is the first instance
where, on a national level, academe has been held accountable for
abusing its adjunct faculty members.
At the hearing, I testified as to why the academy's abusive
tendencies toward adjuncts are relevant to enacting the law; such abuses
are well known, no longer deniable, and need not be detailed here.
Suffice it to say that only when colleges are held accountable for how
they treat their adjuncts can the systemic abuse of adjuncts end. Those
abuses contribute to many of the growing dysfunctions of higher
education—failures predestined because most of America's teaching
faculty are denied necessities like collegiality, job security, academic
freedom, access to libraries and databases, and, for many, offices and
But in advocating for institutional accountability under the
health-care law, adjuncts face a dilemma: If colleges do not adequately
recognize all of the hours adjuncts put into the teaching process—prep
time, grading, student conferences, etc.—then the colleges will evade
their intended obligations and continue to abuse their adjuncts. If, on
the other hand, colleges do take all such time into account, then
adjuncts' courses will be cut back to avoid classifying contingent
workers as full-time employees for whom health benefits must be
Any real, long-term solutions must impose accountability and might include, but not be limited to, the following:
Prohibiting the allocation of teaching schedules for the primary
purpose of evading healthcare coverage responsibility, together with a
presumption that courses which could be taught by a full-timer, if split
up among adjuncts, are being split up to evade obeying the law. This
includes the use of multipart serial courses (for example, Business Law
I, Business Law II, and Business Law III) for which the qualifications
to teach all the courses in the series are substantially the same.
Prohibiting the practice of keeping an adjunct idle for a semester
for the primary purpose of classifying her as a seasonal employee.
Requiring full and open disclosure of total hours of work, and how they were determined.
Another approach, which lies beyond the IRS's authority and would
require Congressional action, would be to mandate that all employees
other than full-time be provided health-care coverage on a pro-rata
Steven M. Bloom, director of federal relations at the American
Council on Education, has proposed two methods of determining adjuncts'
hours: One would be based on percentage of full-time course load, and
the other would apply a ratio of outside-the-classroom hours to "face
time" in the classroom. Either approach is sensible in theory but would
require that appropriate ratios be used. Since colleges and courses are
quite diverse on an individual institutional level, let alone
nationally, there can be no reasonable "one size fits all" ratio.
One suggestion, made by several speakers at the hearing, is to have
the applicable ratios negotiated between college administrations and the
adjuncts themselves. Such an approach has merit but poses many
practical hurdles. Resolution of disagreements would be an issue. The
colleges would, of course, seek the lowest ratio possible; at the
hearing, the American Council on Education grudgingly suggested a ratio
of one hour of preparation time for each hour of classroom teaching,
woefully inadequate for many if not most adjunct situations.
And where a labor union representing both adjuncts and full-timers is
involved, this subject must be negotiated and approved by adjuncts
alone, for even the best-intentioned unions cannot possibly avoid
conflicts between full-time interests and adjunct interests; indeed,
some faculty unions have already limited their adjuncts' course loads.
But that approach should be explored, because it would facilitate
frank discussions between college officials and adjuncts regarding the
needs of institutions and adjuncts alike. That would be a giant step
toward the institutional accountability that today is so sorely lacking.
Kenneth H. Ryesky is an adjunct assistant
professor in the department of accounting and information systems at
Queens College of the City University of New York. He formerly was a
lawyer for the Internal Revenue Service.
As Adjuncts See Their Hours Cut, Some Are Fighting Back By Sydni Dunn
As more colleges cut part-time instructors' work hours ahead of a federal mandate that will require employers to provide employees with more health-insurance benefits, faculty unions and advocacy groups increasingly are fighting back.
In one of the latest examples, a union for part-time faculty members at a Michigan college has filed an unfair-labor-practice complaint alleging that administrators violated a collective-bargaining agreement by unilaterally reducing the number of hours that part-time instructors can teach.
Elsewhere, faculty groups are holding protests and rallies to call attention to the poor working conditions of adjunct faculty members.
The efforts are part of a broader push for more openness between administrators and adjuncts as the terms of their employment are set, said Craig Smith, director of the higher-education division of the American Federation of Teachers. Part-time faculty members need to be included in labor conversations, he said.
The health-insurance requirement, part of the new Patient Protection and Affordable Care Act, is one of the factors driving those conversations. Under the new law, which takes effect in January 2014, employees of large companies who work 30 hours or more a week must receive health benefits from their employers.
Before the law takes effect, some colleges have begun limiting adjuncts and other part-time employees to no more than 29 hours a week. The Michigan Case
The labor complaint in Michigan was filed with the state's Employment Relations Commission on Monday by the part-time instructors' union at Kalamazoo Valley Community College, the KVCC Federation of Teachers, after it received word that, beginning in the fall, part-time faculty members would be limited to nine "contact" hours a semester.
Contact hours are a measure of the time instructors spend face to face with students, and vary from course to course. Adjuncts' work weeks are now calculated by credit hours, and the maximum per semester is 11, according to Catherine E. Barnard, a part-time instructor of psychology at Kalamazoo Valley who is co-president of the KVCC Federation, an affiliate of AFT Michigan.
The complaint accuses the college of violating Michigan's Public Employment Relations Act, which states that "wages, hours, and other terms and conditions of employment are subject to collective bargaining." The union tried to bargain with the college, Ms. Barnard said, but administrators would not rescind the switch to a new maximum based on contact hours.
The change will reduce the number of courses instructors in some disciplines can teach, Ms. Barnard said, forcing them to take a pay cut.
"I teach psychology, and my contact hours are exactly three per three-credit-hour class," Ms. Barnard said. "But in the sciences or in art, in addition to lecture time, they have four to five hours of contact in labs."
According to an April 16 memo sent by a senior administrator to department chairs, the number of contact hours for a course will be calculated by its "strategy." For example, an introductory-level biology course has a "4-3-3" strategy. Adding the last two digits, for lecture and lab time, determines the number of contact hours—in this case, six.
If instructors are restricted to nine contact hours, Ms. Barnard said, they would be able to teach only one class of that kind.
"This is going to affect a third of our members financially," she said, noting that adjuncts are paid by the credit hour. The union represents about 300 part-time faculty members, she said.
As of Wednesday afternoon, the Michigan Employment Relations Commission had not yet received the union's complaint, an official with the agency said. When it does, the next step will be to evaluate the complaint and determine a response.
Lynn Morison, a staff lawyer with the state Bureau of Employment Relations, said complaints are reviewed by the director of the commission and an administrative-law judge to determine whether an unfair labor practice has been committed. If it has, a hearing is scheduled, though "about a third of charges are settled before."
The KVCC Federation hopes that the complaint will encourage the college's administration to negotiate, Ms. Barnard said, but so far the union has not received any word from college officials.
On Tuesday, the day after the complaint was filed, about 45 union members attempted to deliver a poster-size copy of the complaint to the college's president, Marilyn J. Schlack, but she was unavailable. The group left the large photocopy with her secretary.
"The only response I received was when the president contacted public safety and they found me and told me I wasn't allowed to protest," Ms. Barnard said, laughing.
Michael Collins, the institution's vice president for college and student relations, could not be reached for comment on Wednesday. National Efforts
The complaint filed by the Kalamazoo Valley union is among the first of its kind, according Mr. Smith, of the American Federation of Teachers. Though it's likely other unions are considering such action, the national organization has not heard of any other part-time faculty unions' filing a formal complaint, he said.
"We have been doing a lot of presentations and training and talking with locals about different strategies," Mr. Smith said. "The primary strategy is to deal with this at the bargaining table."
John W. Curtis, director of research and public policy for the American Association of University Professors, said most unionized groups work with the administration internally. Employees who are not represented by a union must organize in different ways. Part-timers have called attention to the behavior of university officials by engaging the community through meetings and demonstrations, he said.
One example, he said, is the Ohio Part-Time Faculty Association, which on Tuesday held a "Rally for Equity" on the University of Akron's campus in response to a reduction in part-time employees' work hours there, he said. Demonstrators were encouraged to attend the event, to wear a scarlet "A" for "adjunct," and to broadcast the event through social-media sites.
Both the AAUP and the AFT said they would support the actions of any local chapters, but they are not providing any blanket recommendations, as every situation is different.
"Right now," Mr. Curtis said, "we're collecting examples and looking for ways to act further."
EnlargeJames Buck | firstname.lastname@example.orgKevin Wordelman from Western Michigan University meets with Kalamazoo Valley Community College's part-time faculty union KVCC Federation of Teachers (KVCC-FT), who met to discuss the college's plan to avoid paying for health insurance for part-time faculty under the Affordable Care Act by capping their hours without negotiating with the union. KVCC-FT filed an unfair labor practice charge against the college and delivered a poster-sized copy of the charge to the president's office. (James Buck / MLive)KVCC part-time faculty file unfair labor practice charge gallery (12 photos)
KALAMAZOO, MI – Gary Fergemann has been teaching at Kalamazoo Valley Community College for 29 years.
In the fall, under a new policy regarding maximum hours, he will be teaching two business courses, instead of his usual three – resulting in a one-third loss of pay.
“Lots of people are having their salary reduced by one-third, like mine,” said Fergemann, 67. “I was really disappointed in the college. I think it's the wrong thing to do.”
On Tuesday, Fergemann was one of 30 members of KVCC's part-time teachers union and its supporters who hand-delivered an unfair labor practice charge to President Marilyn Schlack's office. (She was not in it at the time.)
The charge, which was filed with the Michigan Employment Relations Commission and dated April 29, related to a change in the maximum number of hours a part-time instructor can work each semester. On April 16, an email went out to department chairs saying that no adjunct instructor could work more than nine contact hours a semester beginning in fall 2013, as opposed to 11 credit hours, as written in the part-time faculty handbook.
For instructors such as Fergemann, who teach courses that have labs, the result has been to cut their course-load from three classes to two, and in some cases, one.
The union said that the change is an effort by the administration to reduce adjunct faculty hours ahead of the implementation of the Affordable Care Act. As of January, large employers will have to offer health insurance to employees who work 30 or more hours a week or pay a fine.
The Internal Revenue Service said that colleges and universities would need to use a reasonable measure to determine hours, but has not yet offered further guidance as to what that might be. KVCC is one of a number of colleges and universities across the country cutting back part-time faculty hours ahead of January, according to The Chronicle of Higher Education. KVCC's 300 part-time faculty outnumber its full-time faculty by a ratio of about three to one, said Kelly O'Leary, co-president of the KVCC Federation of Teachers.
What complicates matters is that the change occurred while the community college was in the process of negotiating its first contract with the KVCC Federation of Teachers. The union maintains that that makes the change in the maximum hours per semester illegal.
"The key here is that working conditions are a mandatory bargaining issue," said Catherine Barnard, co-president of the KVCC Federation of Teachers. "All we're asking is that the administration sit with us at the table and discuss it, as opposed to making a decision unilaterally."
A spokesman for KVCC declined to comment on the matter, saying the administration had not yet seen the charge.
The ruling is likely to take several months at a minimum, explained Ruth Anne Okun, director of MERC, with the parties having a right to a decision of recommended order, as well as the right to appeal to the full commission.
“The change in work load impacts employee compensation and relates directly to hours of work and is, therefore, a mandatory subject for bargaining,” read the charge, filed by attorney Mark Cousens of Southfield. “Respondent has implemented the change in advance of bargaining, in the absence of collective bargaining and without bargaining to either agreement or impasse.”
An unfair labor practice would be defined as “any unilateral action by management over a mandatory subject of bargaining during the actual bargaining process,” said John Beck, associate professor at the School of Human Resources and Labor Relations at Michigan State University in East Lansing.
Those mandatory subjects include “anything that falls within wages, hours and working conditions,” he said. “Those things can only be handled at the table.”
Beck said that he did not know enough about the specifics of this case to comment directly on its merits, but spoke in general terms about the Michigan Public Employment Relations Act and National Labor Relations Act, which governs the private sector.
While a company that lost a major contract worth millions of dollars might be able to renegotiate with its union for lower terms, Beck said that, in his view, the Affordable Care Act would not qualify as a significant hardship that would allow a college or university to enact a unilateral change.
“The change in that context probably is not enough to void the notion that this is still a unilateral action,” said Beck.
Also, he explained, the law is regarded as a floor for contracts, not a ceiling. While parties can negotiate better terms, they can't negotiate for less than the law allows.
“You can go above and beyond the law,” said Beck. “You can't, in most cases, go below it.”
For some members of KVCC's part-time faculty, the change has them weighing whether they want to continue at the community college.
“We're going to take a huge cut in pay. I don't know if it's really worth my time for one class. … If I drop two classes, that's $2,500 a semester. Five thousand dollars a year is what I would be making. I can't live on that,” said a part-time instructor at the Center for New Media who asked that their name not be used for fear of repercussions. “We rely on two incomes and we rely on my income being a certain amount.”
In the fall, part-time instructors at the center in downtown Kalamazoo will be limited to one class, the instructor said.
“When I was informed about this change, I was also told that they're going to have to hire 19 part-time people to fill these positions now,” said the teacher. “There are part-timers who are far worse off than I am. There are a lot more people who are in much more desperate need, but it's going to affect all of us.”
The teacher is also concerned about the potential impact on students.
“The students are the ones who are going to suffer for it. I don't know if the college has really thought about this.”
Kalamazoo Valley Community College's Texas Township campus.MLive | Gazette File
KALAMAZOO, MI -- The part-time instructors' union atKalamazoo Valley Community College has filed an unfair labor charge against the institution with the Michigan Employment Relations Commission, the KVCC Federation of Teachers announced Monday.
Beginning in the fall, part-time faculty would be limited to nine contact hours a semester, according to an email sent out to KVCC department chairs April 16. Previously, the maximum amount allowed per semester had been 11 credit hours, as stated in the part-time faculty handbook.
"Most of our members are rehired from one semester to the next and rely solely on the modest income we earn teaching classes at KVCC. This unilateral change will mean drastic reductions in work and pay for instructors with proven track records," said Kelly O'Leary, co-president of the KVCC Federation of Teachers. "If the college wants to change its stated policy to decrease our maximum weekly hours, the change cannot be made unilaterally. It must be proposed at the collective bargaining table."
Stating that the administration had not yet seen the charge against it, Mike Collins, vice president of college and student relations at KVCC, declined to comment on the issue at this time.
KVCC is one of a number of colleges and universities nationwide changing the hours for part-time and adjunct faculty before the Affordable Care Act takes effect in January, according to an April 22 article in The Chronicle of Higher Education,"Colleges Are Slashing Hours to Skirt New Rules on Health-Insurance Eligibility."
Under the ACA, large employers must provide health insurance for employees working 30 hours or more a week after January, or face a fine. Colleges in Ohio, Virginia, New Jersey and Pennsylvania are among those who have preemptively changed the hours of their part-time faculty.
The Internal Revenue Service advised universities to "use a reasonable method for crediting hours of service," and said that further guidance may be provided at a later date.
The MLive/Kalamazoo Gazette obtained an email dated April 16 from Dennis Bertch, associate vice president for academic services at KVCC, titled, "PT Hiring Guidelines." It read: "As you begin staffing classes for the fall 2013 semester, please use nine (9) contact hours as a maximum load for part-time faculty." The email also offered help recruiting qualified part-time faculty, as needed.
The new policy would have the greatest impact on instructors who teach courses with labs, such as science courses, said Catherine Barnard, co-president of the union. Under the old rules, they could teach three three-credit classes a semester. But a three-credit biology course, for example, might have six contact hours -- three standard lab and three open lab -- meaning an instructor couldn't teach two courses a semester without hitting the new limit.
"If the college restricts them to nine contact hours, they will have only one class. Refusing to negotiate this change in policy is an unfair labor practice and a violation of Michigan labor law," said Barnard.
Under the state's Public Employment Relations Act, 423.215, Section 15 (1), wages, hours, and other terms and conditions of employment are subject to collective bargaining. The union maintains that the change in the maximum number of hours violates that law.
Other part-time faculty also could be affected, said O'Leary, pointing out that an instructor who previously taught one four-credit course with four contact hours and two three-credit courses with three contact hours each would have to cut back to two classes a semester under the new maximums.
In all, O'Leary estimated that the change would impact more than 15 percent of KVCC's 300 part-time instructors, who make up a majority of the faculty.
KVCC and the union are currently negotiating their first contract. O'Leary said that the union met with the administration at the bargaining table April 25 and were told that KVCC would not rescind the new maximum.
O'Leary said that progress was being made with negotiations until the change in maximum number of hours allowed per semester.
"If KVCC refuses to negotiate this issue with us, I do not know when we will return to the table," said O'Leary. Yvonne Zipp is a reporter for the Kalamazoo Gazette, a part of MLive Media Group. You can reach her at email@example.com or 269-365-8639.