Bill Silver: IEA
Below is a brief overview of the new interpretative changes concerning “reasonable assurance” – as described in Section 3304 (a)(6)(A) of the Federal Unemployment Tax Act (FUTA) and a link to the new DOL directive.
- The last DOL interpretation of “reasonable assurance” was written in 1986 and it failed to address issues related to Higher Education. The new DOL interpretation now notes that since that time…“the use of part-time instructors, often referred to as “adjunct” or “contingent” faculty, has increased significantly.”
- Previously, adjunct faculty were generally restricted from receiving unemployment compensation (UC) during summer and holiday breaks if they had a “reasonable assurance” of receiving a class assignment offer for the upcoming semester. The definition of “reasonable assurance” in Illinois simply meant that an adjunct received any kind of class assignment offer for the upcoming semester—whether it actually ran or not.
- Under the new DOL interpretation, an adjunct no longer is automatically disqualified from receiving Unemployment Compensation (UC) between semesters or breaks, simply because he or she received a class assignment offer for the upcoming semester/academic year.
- Under the new DOL interpretation, a ruling on eligibility must now be made based on the facts of the case. While this does not mean an adjunct will automatically receive UC over the summer or holiday break, it does mean, however, that unemployment offices must base its determination on factors which impact whether “reasonable assurance” exists.
- These factors include the school’s decisions based on its “funding” levels, “student enrollment”, “the nature of the course” (required or optional, taught regularly or sporadically) and program changes. The possibility of being bumped by a full-time faculty will also be a factor in the decision.
- Before making a determination whether there is a contract or reasonable assurance, the unemployment office must decide if the school’s employment offer meets three prerequisites:
- The assignment offer may be written, verbal, or implied, but must be made by a person with the authority to offer employment.
- The employment offered must be in the same capacity—professional or non-professional—as the previous academic year or term.
- The economic conditions of the employment offer must not be “considerably less” than earned in the previous academic year or term. “Considerably less” is defined as at least 90% of the earnings [my emphasis] that the claimant received in the previous year, term, or corresponding term (if the adjunct doesn’t work every semester).
- If the job offered in the following academic year or term does not meet all of the above prerequisites, then the state agency (Illinois Department of Employment Security–IDES) cannot legally deny the claimant Unemployment Compensation (UC).
- States are now required to analyze the totality of the circumstances and determine if it’s “highly probable” that there is a job available for the claimant.
- According to the DOL: “If it is not “highly probable” that the contingency will be met, there is no “reasonable assurance” because the contingent nature of the offer outweighs any other facts indicating that the claimant has a “reasonable assurance.”
- As part of IDES’ determination, it must obtain and analyze a written statement from the employer explaining why the employee received “reasonable assurance.”
- ”The claimant, however, must also provide sufficient information to IDES to support his or her case. This information may include their own class assignment history (whether they have had cancellations due to low enrollment, program changes, or bumping by full-time faculty), student enrollment numbers, whether there’s been significant reduction in the number of classes, new College standards on how many students are needed for a class to run, the failure to put the adjuncts’ name on the class registry, etc.
- The DOL also provided guidance regarding multiple employer situations:
- A claimant can’t be ruled ineligible for unemployment compensation simply because one of his/her employers has given “reasonable assurance”.
- If one, but not all, employers provide reasonable assurance, IDES has two options:
1) To only consider those employers who do not provide reasonable assurance; or
2) To make a determination based on the entirety of the situation.
Below is a link to the new unemployment directive:
https://wdr.doleta.gov/directives/attach/UIPL/UIPL_5-17.pdf