How the New CA Labor Law (AB5) Affects Adjuncts, Part 2

This is Part 2 of our discussion of the California’s new Assembly Bill 5, and its impact on Adjunct Faculty. The bill was signed into law in September 2019 by California governor Gavin Newsom and went into effect on January 1st, 2020. Visit my previous post (Part 1) for an overview discussion of the legislation.
How AB5 will impact adjuncts depending on the “condition” and “location” of employment. Both of these will be the focus of this article.

Public vs Private: Condition of Employment

As we mentioned before, there are still many questions as to how to effectively implement AB5. The obvious question is how do employers differentiate between a contract employee from a regular salaried employee? It should be noted that the state will consider all people receiving compensation for work performed, employees (unless the employer can demonstrate otherwise).

In other words, the onus is on the employer to prove that contractors are not regular employees. Given that adjuncts fit two of the three bulleted points (the second one being the exception), we sit in a particularly precarious situation. Are we independent contractors or employees? If we are independent contractors, how long can we remain in this employment classification?

Independent of these “condition” questions, we need to look at “location” to see if where we work matters in how AB-5 applies to us. Is there a difference in the application of this legislation if you work at a public or private institution?

Public vs Private: Location of Employment

While it is clear that AB-5 applies to public agencies – including educational institutions – in some respects, further clarification is needed from the state legislature or courts to answer whether the type of educational institution matters. All accredited educational institutions have some accountability to the state and federal government. This is embedded in their charter that dictates their ability to issue degrees and hire educators. What is not clear is how private institutions will be held accountable in how they treat their adjunct faculty.

Monitoring and transparency of private educational institutions is the key to ensure that they abide by the laws already in place and address how changes in the law, like that introduced by AB-5, will impact their adjunct faculty. Business schools and law schools use adjuncts in higher numbers than other areas of a campus. As such, the consideration of licensure and certification, which provides exemptions to the AB-5 legislation, will impact the how the “location” of employment implements the law.

When all is said and done, colleges and universities – both public and private – should review labor laws, certifications of certain qualified employees (i.e.; lawyers, medical staff, engineers, accountants), and review Education Code as it applies to independent contractors. State and federal laws limit how long someone can be maintained as a contract employee, especially if they do the work of someone who is a “career” employee.

Adjunct faculty should speak with their institution’s HR department and get clarity on how AB-5 will impact our “condition” of employment, if there is any. Get something in writing to ensure that all parties are clear on the nature of the employment relationship. Institutions, whether public or private, should err on the side of caution and follow the law until told otherwise by the state. They should ensure that if they have employees with special certifications, that they are classified correctly and that the law is correctly applied to them.

Institutions, regardless of whether they are public or private should ensure that they are transparent with their adjunct faculty as to the nature and duration of the employment relationship. This current lack of clarity is troubling. Don’t put the onus on the adjuncts. Institutions need be up front and uphold ethical best practices. The state legislatures and educational institutions need to make this clarification a priority.

The full text of the legislation can be found here.