It’s not every day that colleges and universities and their adjuncts wholeheartedly agree on something. But legislation in California regarding the exempt status of adjunct workers has the backing of both the Association of Independent California Colleges and Universities and the Service Employees International Union.
If successful, the legislation will prevent a number of private institutions from asking adjuncts to fill out time cards to avoid violating labor law on overtime.
In recent years, a number of colleges and universities have settled faculty overtime violation lawsuits filed by the same California law firm — lawsuits that even many adjuncts say are frivolous. Stanford University, for example, last year settled for nearly $900,000 in a class-action suit regarding instructors in its continuing studies program. Attorney’s fees accounted for one-third of the settlement, so adjuncts involved were each entitled to a partially taxable $1,417. Kaplan University also settled, according to public documents. Other suits have been settled more quietly. Public institutions in California, whose adjuncts are generally unionized, have not been affected.
Private colleges and universities have responded to the ongoing legal threat by either making or planning to make their adjuncts document all of their working hours on time cards. But faculty groups say that time cards simply don’t work for what they do, for the same reasons that time cards don’t work for many professions. How should answering students’ emails late at night or grading papers early in the morning be counted, for example? What about preparing for courses or completing professional development?
There are also concerns that asking adjuncts — many of whom have terminal degrees and long-standing qualms about their treatment throughout academe — to complete hourly labor-style time cards is wrong.
“People who are angry about their working conditions are barking up the wrong tree,” said Rali Christo, a lecturer in classical languages at St. Mary’s College of California. “Time cards are very inconvenient and very humiliating for many of my colleagues.”
AB-1466, as the bill is known, seeks to clarify when an adjunct at an independent institution qualifies as an exempt professional under wage and hour laws.
Existing California law requires any work over eight hours in one day and any work over 40 hours in one week to be compensated as overtime, at no less than 1.5 times the regular rate of pay for an employee. For reference, California’s current minimum wage is $12 per hour but over the next few years it will be incrementally raised to $15.
Adjuncts know that the work they do to teach a class extends beyond the hours they’re actually teaching. So adjuncts who technically only work part-time could be working more than eight hours per day or 40 hours per week and therefore entitled to overtime — hence the lawsuits. That’s even though faculty work is widely understood to be professional and therefore exempt from overtime law.
The bill, then, explicitly classifies employees working in education as exempt if they provide credit-bearing instruction at an independent college or university, they meet an existing legal test about whether their work involves advanced knowledge (yes), and they’re paid on a salary basis — and receive either a monthly salary equivalent to no less than two times the state minimum wage at full-time employment, or no less than two times the state minimum wage times the hours of service.
AB-1466 also defines hours of service as all classroom time plus 3.5 hours for each teaching hour to account for class preparation and grading. That’s more generous than the approximately 1.25 hours-per-classroom-hour standard to establish eligibility for coverage under the Affordable Care Act.
“These requirements are fundamentally protective: the duties’ test ensures that only employees who have responsibilities that cannot be easily encapsulated in an eight-hour day are removed from overtime protections, and only after that employee receives a salary of no less than twice the state minimum wage ($46,080),” reads a California Senate analysis of the bill. “Taken together, this both limits the number of employees who can reach the professional exemption, and also requires that employers provide appropriate compensation for an exempt professional.”
Nato Green, an organizer with SEIU, said that with California’s new hourly wage target of $15, this bill could mean that many adjuncts see a significant boost in their pay.
The Association of Independent California Colleges and Universities, a bill sponsor, has argued in its favor that it “provides statutory consistency for adjunct faculty wages” and “provides a baseline compensation for adjunct faculty and allows our institutions to continue treating adjunct faculty as exempt employees.”
While adjunct faculty are regularly treated as exempt employees, the association said, “recently several of our institutions have been forced to convert adjunct faculty to hourly, nonexempt employees in response to litigation stemming from ambiguity in the Labor Code. Conversion to hourly, nonexempt classification is not the preferred action of either the institutions or the faculty. However, lacking the change proposed in this legislation, this is the only means by which institutions can comply with Labor Code and prevent additional lawsuits, which are resulting in six- or seven-figure financial losses.”
Natasha Baker, an attorney for several California private colleges, said that the bill allows for institutions to treat their adjuncts like the professionals they are. Overtime rules work best for retail-style employees, who must take certain amount of break time during the day, for example, she said.
“It’s not really a model that works at these institutions, and adjuncts were being treated in a way that’s different than their full-time colleagues — and that’s really a huge concern.”
The bill recently passed California’s Senate Committee on Labor, Public Employment and Retirement with no opposition. It’s now before the Senate appropriations committee, and its supporters believe it will pass.
Christo, the St. Mary’s adjunct, said the bill is a strong example of what adjuncts can do when they “lobby for a legislative fix, instead of just venting about a bad situation we have.”