Legal Remedies for Contingent Faculty

By Manicone, Nicolas | Academe, November/December 2008 | Go to article overview

Legal Remedies for Contingent Faculty


Manicone, Nicolas, Academe


CONTRACTS, FACULTY HANDBOOKS, STATE AND FEDERAL LAWS, AND THE U.S. CONSTITUTION EACH OFFER SOME POSSIBILITIES.

Education has become "big business, " and the task of operating the university enterprise has been transferred from the faculty to an autonomous administration, which faces the same pressures to cut costs and increase efficiencies that confront any large industrial organization.

- Justice William Brennan, writing for the dissent in NLRB v. Yeshiva University (1980)

Almost thirty years ago, Justice William Brennan saw clearly that American higher education was coming under the same pressures to "cut costs and increase efficiencies" to which market forces were subjecting businesses. Since Justice Brennan's observation, employers generally have sought to maximize their "flexibility" by creating a contingent workforce to which they owe few, if any, long-term obligations. Like workers in many other occupations, faculty appointments are increasingly contingent and part time. By 2005, the latest year for which Department of Education data are available, 48 percent of faculty members were part time and 20 percent were full time nontenure track, while only 32 percent were full time tenured or tenure track. This fundamental restructuring of the personnel relationship has meant that the faculty has lost not only job security but also many of the common incidentals of full-time employment: health and retirement benefits, paid sick leave, and the protections of the Family and Medical Leave Act, as well as other benefits. Many contingent faculty members ask whether they can use legal theories to claim benefits that they feel have been unfairly denied them. This article focuses on some of the avenues to use in asserting a right to such benefits and provides suggestions for determining the locus of rights to which the contingent faculty member may be entitled.

Contracts and Faculty Handbook

The first place to look is to an individual contract or letter of appointment. Such contracts are particularly important for those at private colleges and universities, who frequently have fewer statutory or constitutional protections than those at state institutions. Employment contracts typically specify compensation, benefits (if any), classes to be taught, and start and end dates and refer to more detailed employment policies contained in a faculty handbook or policy statement. Each of these terms, if included, may be enforceable by law. Because a contract or letter of appointment may provide a faculty member with the clearest and most easily enforceable articulation of his or her employment rights, it is important to read these documents carefully - if necessary, with help from an attorney experienced with faculty employment - to ensure that your employer is providing you with everything your contract or letter guarantees.

A faculty handbook may also be an important source of legally enforceable rights - even, in some cases, when the handbook explicitly disclaims its own enforceability. A majority of state courts have held that contractual terms can at times be implied from faculty handbooks. So, for example, in Howard University v. Best (1984), one court found that a faculty handbook commitment to give adequate notice of nonrenewal was enforceable, and other courts have noted that an employment handbook can, under proper circumstances, convert an at-will relationship into one bound by contractual terms (for example, Ferrara v. Koelsch [1985]). Other, less formal statements of policy, such as assurances made in casual conversation, may also be enforceable, depending upon the state.

Various factors may affect whether a faculty handbook is enforceable as a contract, including the favorability of state courts to claims by employees and the specific language of the handbook, so it is impossible to state a general rule that would apply to all faculty handbooks in every situation. The AAUP guidebook Faculty Handbooks as Enforceable Contracts reviews, on a state-by-state basis, every state's law regarding the enforceability of faculty handbooks. …

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