37. Employees of Educational Institutions
A special provision in the UI statute limits the UI eligibility of all employees of public or nonprofit 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 with the educational institution that is substantially the same or better in the next term or year, then the worker may not rely on wages from that position to
establish UI eligibility. G.L. c. 151A, § 28A. The burden of proof for proving that a claimant has reasonable assurance of reemployment falls on the employer. BR-0016 2670 84 (1/29/16) (Key BR-00049 3313 41 (3/31/21) (affirming employer’s burden of providing evidence of reasonable assurance of reemployment). According to G.L. c. 151A, § 28A, the offer of re-employment for the following academic year or term must be made under economic terms that are not considerably less than the current year, meaning that the employee must be offered no less than 90% the amount that they earned in the current academic year. For example, a school district’s offer of re -employment for a 10-month position to a 12-month bus driver was not reasonable assurance because if the bus driver accepted the 10-month position, he would have earned only 83%, not the threshold 90%, of the amount he had earned in the previous academic period. BR-0026 5187 26 (2/27/19).
In order for this disqualification 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) (Key) (institution whose mission was to make art accessible to the public did not fall under § 28A); BR-0021 7731 88 (3/29/18) (Key) (holding that an employer’s 11-week summer sailing program does not make it an educational employer within the meaning of § 28A);28A). This provision applies only to employees of public or nonprofit educational institutions covered by 26 U.S.C. § 3309(a)(1), not to private, for-profit educational institutions. BR-0077 2326 87 (11/29/22).
- If the claim is being filed between two successive academic years or terms, and the worker performed services in the first academic year or term. BR-0052 1627 57 (2/24/22) (Where a claimant’s start date was delayed from the first to the second academic term, and they did not actually perform services in the first academic year or term, G.L. c. 151A, § 28A does not apply).
- If the claimant has an employment contract or received a “reasonable assurance” of reemployment that is substantially the same or better for the next academic year or term. A reasonable assurance is more than the mere possibility of reemployment, See See UIPL 5-17 (12/22/16); BR-0010 7230 82 (9/16/14) (Key); BR-0047 7668 22 (2/18/21) (letter from school employer insufficient to provide reasonable assurance when factors suggested uncertainty in 19).number of hours available in next school year). The reasonable assurance
of reemployment must amount to a bona fide offer of reemployment. BR-0059 4303 10 (10/27/22) (Claimant told by a non-supervisory employee they would be able to return in the next academic year did not have a reasonable assurance of re-employment where there was no indication the non-supervisory employee had the authority to make the claimant a bona fide offer of re-employment).
As professional public school employees earn professional teacher status after three years under G.L. c. 71, §41 (Tenure of Teachers and Superintendents; Persons Entitled to Profession Teacher Status), they are automatically considered to have reasonable assurance of reemployment in the following academic year unless they are officially notified by June 15th of the academic year that they will not be returning to their position the following September.
However, the Board has noted that such “passive” methods of providing reasonable assurance may not be sufficient. BR-0049 1050 98 (3/11/22) (Provision in collective bargaining agreement providing that claimant would return to same position unless employer informed her otherwise does not amount to reasonable assurance of reemployment under UIPL 5-17); BR-0049 3291 21(3/11/22) (Claimant did not have reasonable assurance where they were told they would return in the next academic year so long as they didn’t receive a pink slip at the end of the current academic year).
For employees of educational institutions who do not perform services in an instructional, research, or administrative capacity, if the worker is not given an opportunity to perform work under the same or better economic conditions in the next academic term, the worker is entitled to retroactive UI benefits. G.L. c. 151A, § 28A (b); 430 CMR 4.91–4.98. BR-0059 9543 50 (7/29/22) (claimant entitled to retroactive benefits where she only had the opportunity to return on a reduced schedule amounting to one fewer day per week in the next academic term).
Likewise, where the reasonable assurance given is for work of less favorable economic terms and conditions, the assurance is not reasonable under G.L. c. 151A, § 28A, and the worker is entitled to UI. BR-6931108 (5/12/14); BR-0047 75652 42 (11/23/21) (finding bus driver did not receive opportunity to perform suitable services, i.e., services at the same or higher pay, when the school offered reduced hours due to a hybrid school schedule).
Under G.L. c. 151A, § 28A(c), for both professional and non-professional employees UI benefits are not available during a customary vacation period or holiday recess where there is reasonable assurance of work after the break. This provision was narrowly construed to allow an award of partial UI benefits to a school bus driver who had no work and was not paid during the Thanksgiving break. Cape Cod Collaborative v. Dir. of Dep't of Unemployment Assistance, 91 Mass. App. Ct. 436, 76 N.E. 3d 265 (2017). The Court reasoned that where the statute precludes UI for "any week commencing during an established and customary vacation period or holiday recess" (emphasis in decision), as the week did not commence during a holiday recess where it started on a Wednesday, the exclusion in § 28A(c) did not apply. 91 Mass. App. Ct. at 441, 76 N.E. 2d at 269. See also BR-0022 1445 55 (4/27/18) (holding that a full-time, 12-month, ABA technician who was required to work part-time for six weeks over the summer, G.L. c. 151A, § 28A(b) is not precluded from receiving partial UI during that time. However, the claimant could not collect UI in the weeks immediately before and after the six-week summer program due to G.L. c. 151A, § 28A(c). Such weeks were a customary vacation period where the claimant worked immediately before and had reasonable assurance that she would work immediately after such period).
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 UI benefits despite a reasonable assurance of reemployment the following academic year. BR-114638 (9/13/11) (Key). 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. (emphasis added).
Primary and subsidiary jobs are distinguished for eligibility purposes. (For the distinction between a primary and a subsidiary 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 subsidiary job, then the wages from the subsidiary job will be excluded in determining the amount of the claimant’s benefit rate and credit. BR-109037-OP (8/4/2009) (Key); 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. See BR-121272 (4/27/12) Similarly, a claimant may be able to establish monetary eligibility based on the wages from other base period employment, BR-0058 4726 89 (7/13/22), or from other work done for the educational institution for which the claimant did not receive reasonable assurance of reemployment. BR-0055 2443 37 (5/25/22) (While claimant received reasonable assurance of reemployment for 10-month academic year job, they also worked for the educational employer’s summer school and camp programs. As these were distinct from the claimant’s academic-year employment, and there is no indication of reasonable assurance of reemployment, wages from these roles may be used to establish monetary eligibility).
In 2014, DUA 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 U.S. DOL UIPL issued 27 years earlier. See UIPL No. 4-87 (12/24/86), https://www.dol.gov/agencies/eta/advisories?field_advisory_issue_date_value%5Bmin%5D=&field_advisory_issue_date_value%5Bmax%5D=&page=0.
Under DUA’s revised policy, an adjunct professor has reasonable assurance of reemployment—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. This runs counter to reasonable assurance jurisprudence that an offer of employment is not considered bona fide if only the possibility of work exists.
However, the employer shoulders the burden to prove that the adjunct had reasonable assurance. AH c. 11, § 2F.6; BR - 0015 4196 77 (12/30/15). 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. BR - 0016 5329 77 (1/20/16) DUA's policy considers “substantially less” to be a reduction of 10% or more, i.e. the claimant will not earn at least 90 percent of the amount earned in the first academic year or term. AH, c. 11, § 2C.4. Consequently, 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 - 0002 1339 07 (5/12/14).
The Board looks at the course schedule history for the adjunct. BR - 0013 6586 83 (10/21/15) (finding that even with a history of teaching a certain number of courses, a drop from three classes to two in a semester was enough to allow for UI benefits). If the adjunct is relatively new or if there have been changes to the workload in past semesters, the Board presumes that there was no “reasonable assurance”. BR - 0016 2670 84 (01/29/16) (Key) (finding that an adjunct who had only worked one year with a workload in the spring semester that was half as much as the fall semester meant that there was insufficient history to show the adjunct had reasonable assurance); BR-0017 6915 85 (10/19/16) (Key) (holding that the appropriate comparison for adjuncts paid by the course and hired one semester at a time is to compare an offer with the economic terms of the most recent academic semester) BR - 0016 6123 65 (04/27/16) (finding that an adjunct who had had four classes canceled in the last eight years did not have reasonable assurance that his classes would not be canceled again). Employers must also be timely in providing reasonable assurance to the adjunct employee. BR - 0016 2822 60 (11/25/15) (finding that reasonable assurance did not exist until the receipt of a letter offering a new schedule). If the school announces a reduction in courses taught by adjuncts generally or in the adjunct's particular program, this can be sufficient grounds to show there was no reasonable assurance for the employee. BR - 0016 3028 44 (5/18/16) (finding that a new labor agreement on the number of classes that could be taught by adjunct faculty meant that there was no reasonable assurance for adjuncts); BR - 0016 2085 38 (03/24/16) (holding that the announced future closing of an academic program meant there was no reasonable assurance).
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).