Harper College Adjunct Faculty Association

The National Education Association has been working with the Department of the Treasury to address concerns related to contingent faculty members who are paid on a per-course basis. This issue arises in the context of the development of federal regulations related to the employer-penalty provisions of the Affordable Care Act. As explained in more detail below, the key policy issue at this point is for NEA to make a recommendation to Treasury about how to count contingent faculty members’ hours of service. Treasury is seeking input on this issue.

We have developed draft language to send to Treasury, based in part on discussion with NEA higher education leaders. Please let us know if agree with the draft or if you have alternate suggestions. Written comments are due to Treasury by March 18, 2013, so we are asking to receive any feedback by the end of the day on Thursday, March 14. We also plan to speak at a public hearing to be held by Treasury on April 23, so the March 18 deadline is not the last opportunity to raise issues of concern. If you have comments, please send them to Joel Solomon in the NEA Collective Bargaining and Member Advocacy Department: Jsolomon@nea.org.

Although the potential for an employer penalty is real, employer overreaction and misunderstanding are far more likely to be motivating some employers to cut, or threaten to cut, contingent faculty members’ course loads to preempt the possibility of paying a financial penalty. (Please note that NEA is also working to arm our higher education leaders and staff with information to help counter employers’ moves to cut course loads.)

Issue Overview: The ACA creates the possibility that some large employers will pay a financial penalty because of the way they offer—or fail to offer—health coverage to full-time employees and their dependents. Some higher education employers fear that a contingent faculty member with “too many” courses will be considered a full-time employee for penalty purposes. That, in turn, could potentially expose the employer to a penalty. The fear is based on the law’s definition of a full-time employee as one who works an average of 30 hours a week during a month. That definition is for penalty purposes only, not other hours-related determinations (like for eligibility for health benefits).

An employee with a total of 27 total hours (for example, a contingent faculty member with nine classroom hours and 18 hours outside the classroom during the week) would be part time for penalty purposes and could not, under any circumstances, lead to a financial penalty for the employer. A contingent faculty member with 30 or more hours a week would be considered full time for penalty purposes and could potentially cause the employer to pay a penalty (although there is no guarantee that the employer would actually have to pay a penalty, even if the employer did not offer the contingent faculty member health insurance). So, an employer that assumes a contingent faculty member works one hour outside the classroom for every hour worked inside the classroom is less likely to determine that the faculty member is full time for penalty purposes. By contrast, an employer that assumes a faculty member works five hours outside the classroom for every one worked inside the classroom is much more likely to determine that the faculty member is full time for penalty purposes.

Regulators recognize that educators’ hours in the classroom also require time outside the classroom, including preparing for class, doing administrative work, meeting and communicating with students, and supervising and grading students. At issue is what Treasury tells employers to do with respect to adding classroom hours to hours worked outside the classroom to determine total hours worked. Should it apply a single metric to all situations (for example, requiring employers to consider that for every hour worked in the classroom, contingent faculty members should be credited with two additional hours of work)? Should Treasury tell employers to base their approach on how its other faculty members’ hours are counted (for example, basing contingent faculty members’ total hours on the way full-time faculty members’ hours are treated, when such information is available)? Should it require that employers be reasonable in how they address the issue of total hours worked? What other method should Treasury tell employers to follow? The current comment period gives us the opportunity to weigh in with regulators on what we think the best approach is to counting contingent faculty hours for ACA employer-penalty purposes.

NEA Work to Date: Before Treasury released proposed rules on the employer-penalty issue, NEA spoke with Treasury about our concerns related to contingent faculty members who are paid on a per-course basis, including that some employers are trying to cut course loads. We also let Treasury know that there is no simple, across-the-board equation for determining how many total hours contingent faculty members work. That is, we pointed out that there could be significant differences in out-of-classroom hours depending on the course and many other factors.

Treasury published its proposed rules on the employer-penalty provisions of the ACA in early January of 2013. In them, regulators issued positive and logical rules for dealing with contingent faculty members’ hours: Until further notice, employers must use a reasonable method for crediting contingent faculty members’ hours of service. Treasury noted that it would not be reasonable for an institution of higher learning to take into consideration only classroom hours and to ignore class preparation time.

The Current Regulatory Request: Treasury is now asking what regulations it shouldrelease adopt related to how contingent faculty members’ hours of service are counted.As noted above, in its proposed rules, Treasury gave an example of what would be an “unreasonable” employer approach to counting contingent faculty members’ hours of service. It explicitly rejected providing an across-the-board equivalency—for example, that employers should consider that for every in-class hour, contingent faculty members are considered to have worked a total of three hours for purposes of the ACA’s employer-responsibility penalty. Treasury also rejected the notion of including “anti-abuse” rules that would have prohibited employers from cutting a contingent faculty member’s hours in order to avoid the possibility of a penalty.

In our draft, we do not propose that Treasury adopt an across-the-board rule regarding how to count contingent faculty members’ total hours of service. However, if you believe that an across-the-board approach would be better, please let us know how you think it would function in practice across the country.

NEA’s Proposed Recommendation to Treasury. “The National Education Association recognizes that, for contingent faculty members (adjunct faculty members), there is no single measure of how many out-of-class hours are required for every in-class hour. In part, this is because subject matters can vary greatly. Applying the same hours-of-service calculation to all contingent faculty members would undermine the purposes of Section 4980H of the Affordable Care Act by misrepresenting the number of actual hours of service provided by a contingent faculty member. Although the calculation would be correct in some cases, it would over- or under-estimate the actual hours of service provided in most cases.

For this reason, the National Education Association respectfully urges the Department of the Treasury to issue final rules that reiterate that employers must use a reasonable method for crediting the hours of service of contingent faculty members, as drafted in 78 FR 255. For this language to lead to the effective enforcement of the Affordable Care Act’s provisions related to shared responsibility for employers, however, we also urge that you include safeguards for employers’ use of the reasonableness standard. Specifically, employers should be required to disclose to an employee and/or the employee’s representative detailed information on how the employee’s hours of service were credited. We also request that you specify that it would not be reasonable for an employer to issue across-the-board directives that no contingent faculty member be allowed to teach more than a certain number of courses, as such a directive would have, at its heart, the unreasonable assumption that every contingent faculty member worked the same number of hours outside of a classroom for every hour worked inside the classroom.”

Mark F. Smith
Senior Policy Analyst – Higher Education
Education Policy and Practices Department
National Education Association
202-822-7178
marksmith@nea.org

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