or The Curious Coincidence of the Blog on July 20 (with apologies to Mark Haddon, author of The Curious Incident of the Dog in the Nighttime)
For about 24 hours, earlier this week, many members of the higher ed community across the country mistakenly thought that the Department of Labor (DOL) had publicly declared that colleges and universities in the United States would be investigated for violations of federal employment law in the employment of adjunct and contingent faculty.
A post on the AAUP’s blog Academe quoted a July 15 DOL blog post by David Weil, director of the Wage and Hour Division (WHD) of the DOL, in which Weil explains the new DOL guidance to help employers understand employee misclassification and why it harms affected workers. However, it turned out that the indictment of higher education for its treatment of adjuncts was not official DOL policy, but rather perceptive commentary that contingent faculty working conditions sure seem to violate federal labor law.
Marty Kich, a tenured professor at Wright State University and the blogger who wrote the misattributed commentary preceding the Weil excerpt, observes in his Academe blog post that he has “no idea whether the Department of Labor guidelines on the misclassification of employees as ‘independent contractors’ would in any way be legally applicable to the exploitation of adjunct faculty, but no one reading those guidelines can fail to recognize that the exploitation of those faculty is the result of the same mindset that has contrived the misclassification.”
Last year, contingent faculty activist (and now NFMF Board member) Lee Kottner had the same thought when reading about the appointment of Weil, who had been professor of economics and the Peter and Deborah Wexler Professor of Management at Boston University’s Questrom School of Business, and served as co-director of the Transparency Policy Project at Harvard’s Kennedy School of Government. She drafted a petition addressed to Weil asking that the Wage and Hour Division investigate higher education for violations of FLSA, secured co-sponsors (I was one), and over the last year has collected 11,296 signatures. The petition has been reported on at Inside Higher Ed, PBS, USA Today, and even the blog of Harvard University Press, publisher of Weil’s book The Fissured Workplace.
In a strange coincidence, at probably the same time that the Academe blog post was being published Monday morning, I was attending a talk by Dr. Weil at the Advocates Day program of the Association of Labor Relations Agencies annual conference in Minneapolis. I got a chance to ask about the very topic that, unbeknownst to either of us, Marty Kich was pondering online.
Dr. Weil spoke on the topic of “The Fissured Workplace: Consequences for Employers and Workers.” He addressed (as described in the program summary) “the increasingly complex, diffuse, and precarious employment relationships that now characterize many low-wage jobs” and discussed the history of how the workplace has become “fissured” (I would compare this to what many scholars have described as the “unbundling” of higher ed faculty work). He also discussed how the Wage and Hour Division has approached protecting workers’ rights in this context, including through enforcement strategies to address violations and “increased outreach to workers and their advocates to explain their rights and [to] employers to explain their responsibilities under federal labor law.”
Dr. Weil noted that his department has limited resources and only about 1500 investigators to handle millions of complaints that come in every year. Therefore they have to marshal those resources strategically, trying to identify which sectors to target based in part on the extent and pattern of alleged violations, but also noting that often the sectors with the most egregious violations are the ones in which the employees feel least safe about speaking out.
The DOL’s recent clarification of the difference between Independent Contractor and Employee, which is the best-known employee misclassification issue, is meant to ensure that employers are fulfilling their obligations and that workers are protected under the provisions of the Fair Labor Standards Act (FLSA). When workers are misclassified as Independent Contractors, they do not have access to many important protections, including unemployment compensation, overtime pay, and access to Public Student Loan Forgiveness. As Weil explains in the DOL blog, “Misclassification also generates substantial losses to the federal government and state governments in the form of lower tax revenues, as well as to state unemployment insurance and workers’ compensation funds. It forces workers to pay the entirety of their payroll (FICA) tax. It also tips the scales against all of the employers who play by the rules and undermines the economy.”
Significantly, adjunct faculty are rarely misclassified as Independent Contractors anymore. About ten years ago, a series of legal decisions essentially settled the question on the side of employee status, to adjuncts’ benefit. (Adjuncts who may currently be misclassified as Independent Contractors can request a determination by the IRS by filing Form SS-8.) The real misclassification issue for adjuncts now is around exempt (salaried) vs. non-exempt (hourly) status, and around further exceptions within exempt status. With the changes to adjunct employment practices wrought by institutions’ efforts to avoid the Employer Mandate of the ACA, adjuncts are now increasingly being treated like hourly employees without having the associated benefits of that status, like access to overtime pay and protection from wage theft. So adjuncts are caught between a rock and a hard place: receiving only a few of the necessary protections of exempt status (like recognition of professional autonomy), none of the protections of non-exempt status, and all of the vulnerabilities of both. (More on this problem in Part 2 of this post.)
During the public Q&A after Dr. Weil’s talk, I was able to introduce myself and NFM and to ask the central question of the petition: how can WHD address the problem of contingent faculty—especially part-timers and those with difficult access to collective bargaining—falling through the cracks of the FLSA and experiencing what are essentially, if not technically, violations of the FLSA? I asked what, in addition to organizing and collective bargaining, contingent faculty can do to help WHD address this problem.
Dr. Weil responded that the answer is “embedded in the question.” The DOL is bound by the statutory constraints of the law, he explained, so organizations like NFM are essential to helping DOL and the public understand when and why laws are not working, and to ensuring that necessary changes take place.
One Issue, Many Fronts
I took Dr. Weil’s response as an acknowledgment of the importance of the education, advocacy, and organizing in which NFM and other groups and activists engage. Only we can explain clearly how existing labor law’s treatment of adjunct and contingent faculty is based on faulty understanding of, and incorrect assumptions about, our work, who we are as workers, and the way that the sector has changed over the last forty years. We have to organize ourselves even more effectively to make sure our voices are heard, and we have to tell our leaders precisely what changes we want to see in existing legislation, and what new legislation might be necessary.
In January 2013 I made this point to the MLA in my presentation on the presidential panel, calling on the MLA, as a disciplinary organization which focuses on language, to help correct the language that is used to prevent contingent faculty from gaining access to legal rights and protection in laws like the FLSA. Similarly, in November 2014, Adjunct Action examined potential wage and hour violations in contingent faculty work and called for changes to federal labor law in its publication Crisis at the Boiling Point. And of course, 11,296 people who signed Lee’s petition have specifically asked for DOL’s help in figuring out how both the letter and the spirit of the law are currently being violated.
Here’s what NFM will do. In coalition with other groups and activists, we will follow up with the DOL regarding contingent faculty and FLSA. We would like to find out for sure what is possible to address through FLSA and what cannot be done without enacting statutory changes. Where statutory changes are needed, we will continue educating and engaging with legislators, agencies, and advocates. And in the meantime we will continue to support contingent faculty organizing and advocacy at all levels.
This will not be the first time we have engaged with federal agencies on issues central to contingent faculty working conditions. For those who may not be aware, here are two other DOL-related projects NFM has been working on:
- Leading the coalition of unions and organizations that is requesting a new guidance letter from DOL to clarify to the states that “reasonable assurance of continued employment”—the standard that prevents contingent faculty from collecting the unemployment compensation that is their due—does NOT in fact apply to contingent faculty and that therefore contingent faculty should not be denied this basic right. (See more here.)
- Educating faculty about the right to unemployment compensation as long as contingent faculty do not have authentic contracts; supporting them in the application process and collecting data about the inconsistent judgments that take place around the country and result in contingent faculty experiencing exacerbated periods of economic hardship during the summer and winter breaks. (See the Unemployment for Adjuncts website.
- Correcting Bureau of Labor Statistics (BLS) public information about the nature of higher education faculty work.
In 2013 we also spoke to the IRS about proposed rule changes to the section of the ACA known as the Employer Mandate. Working with unions and activists, we helped stop the juggernaut of college and university lobbyists who might otherwise have forced through a bright line standard for defining the average adjunct work week by crediting only one hour of out-of-class work for every hour an adjunct spends in class. While the final rules result was not ideal, it does present an opportunity for further correction of the way that adjunct faculty work is understood in federal law. (And has already been bargained higher in some contracts in Massachusetts.)
Similarly, we have called on the Department of Education to require disclosure of adjunct faculty numbers and working conditions to potential students and the public, something which will be much easier if funding is restored to the National Center for Education Statistics so that it can collect accurate information about the majority of the faculty. We continue to be in touch with the House Education and Workforce Committee about these and other topics. (I was asked to testify on adjunct working conditions before this committee in November 2013, and this led to the production of the report “The Just-in-Time Professor.”)
In our next post on this topic, we will discuss some of the specifics of FLSA and some ideas for how to amend it so that its protections are more properly extended to adjunct and contingent faculty.
Postscript: Dr. Weil had to leave the conference immediately after his talk, so I could not deliver Lee’s petition to him personally; however I was able to give it to one of his colleagues to pass on to him.
Please watch our web site, Facebook and Twitter (@NewFacMajority) for continuing information. And please consider supporting NFM’s work by becoming a member or by making a fully tax-deductible donation to the NFM Foundation.