By Kenneth H. Ryesky
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.
Any teaching faculty member's work begins well before attendance is
called and ends long after class is dismissed. But the new law gives
colleges an incentive to minimize the hours they must report for each
adjunct; specifically, the college must
offer health insurance to any adjunct who works 30 or more hours per week.
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
desks.
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
provided.
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
basis.
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.
http://chronicle.com/article/Counting-Not-Curtailing/139031/?cid=cr&utm_source=cr&utm_medium=en
