Wage theft and adjunct contract enforcement. A case study from California.

by Corey Sherman

Source: SEIU 1021 website

Adjunct professors need unions. They teach on term-to-term contracts with no guarantees of future employment and typically lack access to healthcare and retirement benefits. They do countless hours of uncompensated labor in course design, class prep, grading, office hours and mentoring students. Nationally, roughly three-quarters of all higher ed faculty positions are part time. Like their tenure track counterparts, adjuncts must, for continued employment and career advancement, publish scholarship or maintain an artistic practice. They often perform service on university committees. Splitting their duties across campuses, adjuncts are also often siloed and atomized. Adjuncts’ economic function is to provide, at the lowest cost to the college, a necessary service to youngsters who access this service by plunging themselves into a lifetime of debt. In other words, they represent an essential if not overlooked node in the extractive political economy of higher education under late capitalism.

Over the past eight years, adjuncts have successfully formed unions at over 50 universities across the United States. The theory is that with an independent democratic decision making body and collective voice, adjuncts can advocate for themselves and mutually aid each other in pursuit of more equitable work conditions. Unfortunately, adjunct unions have not yet been able to completely overturn the contingent employment relationship that defines adjunct labor: term-to-term or year-to-year contracts. The perpetuation of that employment relationship makes contract enforcement challenging. In my experience as a field representative for Service Employees International Union (SEIU) in California, higher education employers seize upon the contingent nature of adjunct labor to ignore wholesale the collective bargaining agreement (CBA) and to demur at workers’ efforts  to settle grievances. College administrations instead prefer to take their chances on lengthy arbitrations which do not resolve before the adjunct has already been disposed of. Administrators can get rid of adjuncts after they file grievances because the contingent employment relationship maintains, in effect, an at-will employment model. Even when the union wins an arbitration award, if the grievants have left the institution it is difficult to build an organizing campaign around the win itself -- new adjuncts may know nothing of the issue and they do not materially benefit. Thus, until and unless adjunct unions follow other industrial unions and organize to eliminate the tiered employment structure of higher education, these problems will persist. Adjuncts must organize to abolish tenure and establish parity in higher education employment. 

To prop up the gig academy, colleges have used COVID-19 as a pretext to cut adjunct jobs, slash their wages and pilfer their intellectual property made available through a nationwide transition to online instruction. But COVID-19 did not create these problems, they just exacerbated the problems that already existed. In particular, colleges in the Bay Area carry out systematic wage theft by unilaterally slashing salaries for courses administrators consider “under-enrolled.” In doing so, colleges circumvent their obligations to bargain over wages and fabricate out of whole cloth pro-rata pay schemes that violate collectively bargained wage scales. Such violations encapsulate the disaster capitalism that prevails at colleges and universities around the country: tuition-dependent institutions see enrollment fall annually, but rather than holding administrators accountable for poor leadership, bosses see annual raises to their six-figure salaries, while they penalize low wage educators by subjecting their salaries to market forces. The solution to this issue is a methodical rank-and-file organizing strategy complemented by class action grievances and legislative fixes to raise adjunct wages across the board.

Combined Independent Studies

I first encountered a unilaterally-imposed pro-rata pay scheme at Notre Dame de Namur University (NDNU), which is based in Belmont, California. NDNU — California’s first college to confer degrees to women — received this past year a $10 million bailout from the Sisters of Notre Dame, the Catholic order that owns the school. They needed the bailout because the university had leveraged its entire physical plant to First Republic Bank, betting on enrollment growth that never materialized. Further, they had from 2014 to 2020 sunk millions of dollars into a capital campaign predicated on publicly claiming they had met fundraising benchmarks when, in fact, they had not. On top of that, the former CFO of NDNU gave himself a 62 percent raise between 2013-2017 while the school was laying off faculty, operating in the red, burning up their small endowment to cover operating expenses, and hemorrhaging enrollment. The university is currently searching for parties to buy its campus so it can operate a skeleton crew. Had the Sisters of Notre Dame not bailed them out, the university would no longer exist. 

In the course of adjudicating one professor’s grievance over a pro-rata wage cut, the university committed an error that would later haunt them. They stated that it was standard practice at NDNU to compensate part time faculty teaching under-enrolled courses according to a small group rate of $2500 per-course (per-credit rates range between $1200 and $1800). Additionally, the university stated that to “make part time faculty’s jobs easier,” they created “combined independent studies” so that part time faculty would not have to schedule individual class sessions with multiple students. Because independent studies pay $500 per-student, in “combined independent studies” adjuncts were paid $500 per-student for what was in truth a normal class. The effect was that rather than being paid between $4000 and $6000 per-class, adjuncts received between $1000 and $2500 per-class in classes the university needed to run because they were graduation requirements. 

Their admission of a “standard practice” enabled us to expand the scope of the grievance beyond one individual and file an “all affected” grievance on behalf of all part time faculty who were paid according to a small group study or combined independent study rate for the duration of the CBA, looking back three years. We argued that there was no mutually agreed upon practice of instituting pro-rata pay rates — the university never sought to bargain this pay scheme, which had no basis in the CBA. The university justified their position on the grounds that there was a small group rate in the CBA for full time faculty and they found it “appropriate” to apply the same rate for part timers, who were part of a different bargaining unit. We asserted that what is appropriate in the context of a CBA is what the two parties have agreed to, and the two parties explicitly agreed to limit small group study to full time faculty under limited circumstances — namely, to provide full timers with extra compensation, not to cut wages of adjuncts. We also honed in on how the notion of “combined independent studies” renders the CBA language meaningless and absurd. Once multiple students are studying together, there is no longer any independent study taking place. It is just a class. 

The university tried to shift the discussion away from the substance of our claim and sought to dismiss our grievance on procedural issues. They rejected our grievance for lack of timeliness stating that we had no grounds to grieve issues that occurred in previous years. We pointed out that we only found out about the violations when the university admitted to a unilateral practice that we had not agreed to and that the practice was ongoing. Moreover, the university claimed that members and union leaders knew what they were being paid and did not grieve, thereby losing their rights to grieve. We responded that the university never informed the union of its desire to institute novel interpretations of the CBA and they certainly never requested to bargain over these new terms. More than that, the course contracts offered to adjuncts also claimed that the offer carried with it the rights and obligations of the CBA, which was dishonest and misleading because the same teaching contracts included violations of the CBA. 

When they grew exasperated, the university devolved into paternalism. Had they not cut wages, they would not have been able to run the classes at all due to financial constraints. They were just looking out for the adjuncts. This would maybe be believable if top administrators had not been giving themselves annual raises of more than $10,000 while the school was tanking. The adjuncts themselves told a different story: that cutting wages was used by the university as a precursor to pushing adjuncts out of teaching. The university made conditions so abject that the adjuncts would instead prefer to enter the ranks of the unemployed. Taken to its logical conclusion, such a strategy could wipe out the union’s membership altogether.  

Ultimately, we agreed to a negotiated settlement in which we recovered 60% of the lost wages. It was a bittersweet victory, but we made the calculation that this would approximate what we would recover through arbitration taking into consideration the cost associated with arbitration — the arbitrator’s cost, the court reporter, the legal fees, the possibility of the arbitrator awarding less than the full back pay, losing altogether etc. At least now, 20 adjuncts get back between $1000 and $5000 during an economic crisis and at a university that may, in fact, not have a future. 

Half-Lines

California College of the Arts (CCA) employs the same legal counsel as NDNU and institutes the same unilateral cuts to adjunct wages as NDNU. But while the backpay exposure at NDNU was $83,000, at CCA the administration has cut adjunct wages by over $650,000 (and counting) over the past four years — a move that amounts to a 3% annual pay cut across the board. Also like NDNU, CCA plays fast and loose with contract language in order to cut collectively bargained adjunct wages. Violations stem from paying adjuncts for what the college refers to as “half lines” — courses that the college has decided are under-enrolled and should, consequently, require half the work as “full lines.” The CBA defines half lines as instances where adjuncts co-teach a class. Half lines for anything else would require the college to request to bargain, which, of course, they did not. 

CCA views itself as the art school for the tech industry and they restlessly traffic in liberal hypocrisies. It runs a “decolonial school” that is empowered to make changes to curricula; yet the school is expanding its campus on a piece of land in San Francisco where excavations uncovered evidence of indigenous life. The college promotes Black Lives Matter, yet they have not responded to contract proposals for an institutional equity report so we can track race, gender, and disability status in relation to classification of new hires, promotions, course assignments, special compensation assignments, and retention. Their outgoing board chair, Art Gensler, pulled in $70 million in US government contracts since 2010 while he simultaneously donated to anti-public sector causes like the KIPP charter school network, the Cato Institute, Pacific Legal and the extremist GOP leader Kevin McCarthy. They slow walk collective bargaining, yet they find the time and energy to negotiate deals with banks and property developers that not only saddle the institution with crippling debt, but also divert student housing revenue to Wall Street investors for the next thirty years. They are a self-proclaimed social justice institution that assiduously works to undermine workers’ rights.  

In our grievance meeting over half lines, the college offered the same justification as administrators at NDNU: the union knew about what people were being paid and did not grieve. They justified this position on the grounds that half lines were discussed in a labor management committee meeting. But discussing something in a labor management committee meeting does not meet the standard for requesting to bargain over changes. Half lines are unilateral changes that cut wages in half. Moreover, even while the college claims that half lines are half the work, adjuncts disagree. And though the college claims that half line courses are under-enrolled, the average enrollment for these classes over the past four years is between 7 and 8 students, which is what the college advertises its student-to-faculty ratio as — identifying this low ratio as promoting “maximum mentorship.” Half lines are the functional equivalent of Uber changing how much a driver receives per-trip. The college charges full price for these classes and students receive the same amount of credits but the adjuncts teaching receive only half of their earned wages. 

We are at a stand-off with CCA over this issue. Our grievance has been referred to arbitration. We also have contract language which will strengthen protections for adjuncts and solve a longstanding problem for the workforce. But the fact that we need to introduce such language illustrates the central issue: determined anti-union higher education employers can, without bargaining, create facts that entrench the exploitation of contingent faculty forcing the union to play whack-a-mole. 

Fighting Back

The grievance approach outlined in the preceding sections is really the last resort. There are preemptive solutions: organizing the membership and organizing for legislative fixes.

Organizing adjuncts is a challenge because they are either stretched thin across multiple campuses or invested in a professional practice and view teaching as more of a public service and a way to give back — not a career. Beyond that, the professional culture of collegiality and reasoned debate often means that professors resist direct confrontation with their boss, who themselves use a veneer of collegiality to deprive adjuncts of basic dignities such as an agreed-upon wage and benefits structure. Still, if we are to resist this and other forms of exploitation in higher education, adjunct unions must develop rank-and-file power. At the very least, unionized adjuncts must know that unilateral changes to wages, hours or work conditions represent a violation of the CBA and possibly unfair labor practices. And just like the goal on the shop floor is to have a steward on every shift, adjunct union leaders need to recruit stewards in every academic department who can build solidarity among the people adjuncts work most closely with. Department chairs typically want to maintain cordial relations with their professors. If adjuncts in a department are united, they may find their chairs voicing adjuncts’ concerns to the administration instead of doing the administration’s bidding within departments. These building blocks support the larger goal of making an adjunct union strike ready to demand long-term job security and wages and work conditions on par with tenured faculty. 

Separately, unions can push for state level legislation to modify the labor code and guarantee minimum compensation for contingent faculty. This is what SEIU accomplished in California with AB736. That bill instituted a per-course minimum for contingent faculty that rises with inflation. Additionally, the bill defined the labor adjuncts should be paid for as anything related to a course: course design, course prep, office hours, grading, labs, studios, instruction -- anything. The bill included a 3-year lookback period and took effect immediately after the governor signed the bill into law. This legal backstop supports a rank-and-file strategy in two ways. First, it creates an extra layer of protection from employers who want to cut wages. If bosses in the gig academy cut unionized adjunct wages, they expose themselves to legal liabilities beyond CBA enforcement. Second, when labor wins improvements for a class of workers across the board, it reverberates through that sector broadly and should move unorganized workers to commit themselves to an organizing drive. The calculus is straightforward: if this is what labor can achieve without me, what can it achieve with me, and what can my coworkers and I achieve together? 

Bad bosses don’t go away with a CBA. There’s always going to be a fight. We need to string together small wins to build the kind of leverage that could win structural changes: debt-free college education and an end to austerity and precarity in higher ed employment.

Corey Sherman is an organizer and educator in the San Francisco Bay Area.