Legislation Watch

This is the first of an occasional column highlighting local, state, and federal legislation and legal cases affecting Higher Ed. If you’re aware of specific legislation in your area, please submit tips to us. We also welcome more in-depth analyses of specific bills or policy changes.

A number of conservative attempts to modify higher education’s inner workings have been offered in various states in the last six months, but most have either not been taken up or died a grisly death. Among the most infamous were North Carolina State Sen. Tom McInnis’s  Senate Bill 593, and Senator Mark Chelgren’s bill (Iowa) which increased the number of classes all professors would be required to teach, and allowed students to “vote their least favorite professors off the academic island” regardless of tenure, respectively. Both show an obvious lack of knowledge about how higher education works, and a desire to have greater “managerial” control over the ideas and  knowledge—in short, the work—produced in colleges and universities. Though these two bills have been tabled, they remain “in play” in that they may become zombie bills resurrected in the next session. We’ll keep an eye peeled.

The really big news for academic unions is the Supreme Court taking up Friedrichs v. California Teachers Association. This case has public service unions, including academic unions, holding their collective breath. At issue is whether public sector unions can require “agency fees” from non-members to help finance union work. “If the Supreme Court rules that ‘fair share’ violates the First Amendment rights of public employees, they would transform the entire public sector into right to work, more appropriately named ‘right to freeload,’” said Rudy Fichtenbaum, a professor of economics at Wright State University and national president of the American Association of University Professors,” in an article in Inside Higher Ed. The Atlantic has a good run-down of the history and analysis of Samuel Alito’s role and likely vote in this case. Some academic union locals are already stepping up the effort to convert agency fee payers to full members.

Meanwhile, the big news for community colleges is the new bill first hinted at by President Obama in January and now actually proposed by House Democrats (PDF) but as yet untitled, making funds available for states to offer free tuition at community colleges. This is legislation that adjuncts should be especially concerned with because there are no provisions for funding more full-time faculty, or even an acknowledgement of the fact that we do most of the teaching at CCs; there is, in fact, no mention of faculty at all. But there is a great deal of reliance on metrics and outcomes to continue the funding, and calls for “providing comprehensive academic and student support services, including mentoring and advising, especially for low-income, first generation, adult, and other underrepresented students.” Unless adjuncts make it clear who should be doing the advising and mentoring, those jobs will got to even more administrators—or worse, overburden the administrators already doing that job.

Wisconsin’s new proposed state budget has just come down the pike with some devastating consequences for public education and Higher Ed. We’ve already heard about the $250M cut to the University of Wisconsin system and the negation of shared governance and tenure. ABC’s local affiliate’s blog has a concise summary of the major provisions of the budget, but here’s one of the scarier non-monetary parts of the Wisconsin budget, aside from the part that kills shared governance and laughs at tenure:


All 132 members of the Legislature, their staff and those who work for legislative support agencies would be able to shield nearly all their communications and work material from the open records law. Currently available material, like bill drafts, would be kept secret. Nearly all records created by all other state and local government officials would be exempted from the records law as well.

Note: This provision was withdrawn shortly after the initial budget was released (on July 4th, appropriately enough) with the following explanation: “The intended policy goal of these changes was to provide a reasonable solution to protect constituents’ privacy and to encourage a deliberative process between elected officials and their staff in developing policy. It was never intended to inhibit transparent government in any way.” We’ll leave it here just to make people aware of the political climate in Wisconsin, in case you weren’t already sure which way it’s heading.

By contrast, Oregon is about to vote on a $14M increase to Oregon State‘s budget, which will allow them to hire new faculty and expand programs. Not only that, but they’ve beaten the Federal law to the punch and are already making community college free. Yay, Oregon (and Tennessee)!

For something truly precedent setting, we look to Massachusetts, which is making a major effort to hire more faculty, and not just adjunct faculty. “Legislation sponsored by Rep. Paul Mark, a Peru Democrat, would require public higher education institutions to increase fulltime faculty so that by 2021 three quarters of substantial undergraduate courses on each campus are taught by tenured or tenure-track faculty. The bill (H 1055) would also tie adjunct faculty pay to a prorated amount of what fulltime faculty make.” Needless to say, this would be a godsend for adjuncts.

After a long, major campaign (that included some hard-hitting radio ads), CUNY’s Professional Staff Congress, which has been without a contract for five years, got their budget that proposes 20% raises (mostly for tenure-track faculty and not retroactive) past the state senate. Gov. Cuomo, however, is Not Amused and has not yet signed it. Students won’t be either, since higher tuition is also part of the package. And adjuncts? “The PSC has historically negotiated within the annual salary amounts for equity increases for certain lower-paid positions, such as College Laboratory Technician and Adjunct Lecturer, or for additional amounts applied to top salary steps; we reserved the right to negotiate similar equity increases in this round.” Maybe PSC will negotiate the same kind of equitable distribution of raises practiced in California, with higher raises going to those at the lower, adjunct end of the wage scale.

The U.S. Department of Labor announced on June 30th that as many as 5 million employees will now be eligible for overtime payexcept for “learned professionals,” which is basically college professors of just about any sort. Here’s a summary of that exemption:

Learned Professional Exemption

To qualify for the learned professional employee exemption, all of the following tests must be met:
  • The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
  • The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
  • The advanced knowledge must be in a field of science or learning; and
  • The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

Without that exemption, there might be some hope adjuncts could make a case for work done outside the classroom when we’re paid by the credit hour.

BUT, in a potentially important and possibly precedent setting move, Massachusetts adjuncts can now earn sick time calculated by a 60% higher out-of-class to in-class work ratio than the previous IRS numbers. “Following extensive conversations with representatives of SEIU Local 509’s FacultyForward initiative, the Attorney General’s Office promulgated regulations that account for two hours of course planning and follow-up outside the classroom for every hour spent on in-class instruction – a 60% increase over existing IRS rules governing “shared responsibility” under the ACA. The new rules take steps toward acknowledging the true workload of contingent faculty, allowing them to accumulate time to care for their families’ health without loss of compensation or other course-scheduling repercussions.”

On the same note, we’ll close with Connecticut’s newly passed wage theft law that requires employers to double what they’ve stolen when repaying lost wages. Think how rich we’d all be.

–Lee Kottner



2 thoughts on “Legislation Watch

  1. I am wondering about the ‘learned professional exemption’ in the new DOL regs. If $455/week adds up to $22,560/year, that is a tidy sum for those who are working half-time or less, which many of us are. (It is double what I am making in a .5 position). Is it possible this is good news for the part-timers who are academics? Or do you have to add up your income from all sources in determining whether you meet the exempt income level?

    If this is a loophole that would enable us to file for overtime–we need to know! Thanks for this great coverage.


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