37. Employees of Educational Institutions
A special law limits UI eligibility of all employees of schools and other educational institutions (not just teachers but also custodians, bus drivers, and aides) when they are out of work between academic years or terms, even if they receive no pay over the break. If the worker has a contract of employment or a “reasonable assurance” of employment that is substantially the same or better in the next term or year, then she will not qualify for UI benefits. G.L. c. 151A, § 28A.
In order for this limit to apply, DUA should determine:
- if the employer is an educational institution. If the employer is a private bus company that contracts with a school, this provision does not apply; nor does the provision apply if the employer’s mission is not educational. BR-107631-A (9/18/2009) (institution whose mission was to make art accessible to the public did not fall under § 28A);
- that the claim is being filed between two successive academic years or terms;
- whether the claimant has a contract or received a “reasonable assurance” of reemployment in the same or similar position for the next academic year or term. A reasonable assurance is more than the mere possibility of reemployment, and must be submitted in writing to DUA.
For employees of educational institutions who do not perform services in an instructional, research, or administrative capacity, if the worker is then not given an opportunity to perform work in that next academic term, the worker is entitled to retroactive UI benefits. G.L. c. 151A, § 28A (b); 430 CMR §§ 4.91–4.98. Likewise, where the assurance given is for work of substantially less favorable economic terms and conditions, the assurance is not reasonable under G.L. c. 151A, § 28A, and the worker is entitled to benefits. BR-6931108 (5/12/14).
Advocates should note that where an instructional employee is employed in one academic term but not in the academic term immediately following that term, the employee remains entitled to benefits despite a reasonable assurance of reemployment the following academic year. BR-114638 (10/13/2011). The Board noted in its decision that the manifest legislative intent behind section 28A(c) was to “withhold benefits to school employees during holiday and vacation periods only when they worked immediately before and after such recesses,” and that it approved of the decision in a UI case from Pennsylvania that the nearly identical provision in that state’s statute did not apply to coaches hired only for fall terms of each year because the intervening spring semester was not a period between academic terms, but an academic term proper, and therefore the employee did not have a reasonable assurance of reemployment in the next academic term. Id. (both emphases added).
Primary and secondary jobs are distinguished for eligibility purposes. (For the distinction between a primary and a secondary job, see Question 45.) If the claimant has had different types of educational employment during the base period preceding a new academic term, the examiner will look to the claimant’s primary base-period employment in determining whether there was “reasonable assurance of reemployment.” If there is no reasonable assurance of reemployment in the claimant’s primary job, then the claimant is eligible for benefits. If there is reasonable assurance of reemployment in the claimant’s secondary job, then the wages from the secondary job will be excluded in determining the amount of the claimant’s benefit rate and credit. BR-109037-OP (8/4/2009); BR-121760 (4/20/12).
Additionally, if a claimant was engaged in different types of educational services—e.g., both full-time teaching and substitute teaching—and received reasonable assurance only for the latter, the wages from the full-time teaching could be used to establish the claim. (DUA Memo on School Employees, G.L. c. 151A, § 28A dated 6/11/12 applying BR-121272, available at www.masslegalservices.org.)
In 2014, changed its policy regarding UI eligibility for adjunct college professors, making it more difficult for adjuncts to collect UI. Under DUA’s prior policy, an adjunct whose employment was contingent upon “enrollment” or “funding” did not have reasonable assurance of reemployment and was therefore eligible. DUA has changed this policy, relying upon a federal Department of Labor Unemployment Insurance Program Letter (UIPL No. 4-87, December 24, 1987).
Under DUA’s revised policy, an adjunct professor has reasonable assurance—despite enrollment or funding contingencies—if the employer can show a history of reemployment on similar terms and conditions and the offered employment is not substantially less than the prior employment. If the adjunct professor is being offered work that is substantially less than previously offered, there is no reasonable assurance and the worker is UI-eligible. Moreover, a contractual requirement by the employer to offer at least one course per term is not sufficient to establish reasonable assurance if that is “substantially less” than the worker’s prior employment. See BR Issue ID: 0002 1339 07 (5/12/14).
An adjunct professor who has reasonable assurance from one employer but not from another may also be eligible for UI. An adjunct professor who also held a full-time teaching position without reasonable assurance of reemployment but was given reasonable reassurance of reemployment of the adjunct position is not barred from UI for the benefit year of the full-time position. BR-121760 (4/20/12).