Nowhere does the Law of Unintended Consequences run more rampant than in the field of taxation. That was clearly demonstrated at the Internal Revenue Service's rule-making hearing on April 23, in the agency's attempts to craft regulations to impose a steep tax on employers who fail to provide employee health-care coverage required by the Patient Protection and Affordable Care Act.
While most of the 25 other witnesses at the hearing represented various employers or organizations, I testified in my personal capacity as an interested citizen who happens to be an adjunct faculty member and former IRS lawyer.
Distilled to their essence, the 1,200-word statute and its companion 36-page Federal Register proposal to carry out the law provide loopholes giving financial advantage to employers who classify their workers as part-time and/or seasonal. So colleges have already begun to do just that.
Any teaching faculty member's work begins well before attendance is called and ends long after class is dismissed. But the new law gives colleges an incentive to minimize the hours they must report for each adjunct; specifically, the college must offer health insurance to any adjunct who works 30 or more hours per week.
Smaller colleges have additional reasons to reduce the hours that adjuncts report. If counting under the "full-time equivalent" provisions of the law yields fewer than 50 total employees, then the college will not reach the "large employer" threshold, and thereby not be subject to the punitive tax.
Moreover, adjuncts need not be counted at all if the college can somehow classify them as "seasonal workers." In that regard, there seem to be some guardian angels with adjuncting gigs, because the IRS's proposed regulations state that "it is not a reasonable good-faith interpretation of the term 'seasonal employee' to treat an employee of an educational organization, who works during the active portions of the academic year, as a seasonal employee." This is the first instance where, on a national level, academe has been held accountable for abusing its adjunct faculty members.
At the hearing, I testified as to why the academy's abusive tendencies toward adjuncts are relevant to enacting the law; such abuses are well known, no longer deniable, and need not be detailed here. Suffice it to say that only when colleges are held accountable for how they treat their adjuncts can the systemic abuse of adjuncts end. Those abuses contribute to many of the growing dysfunctions of higher education—failures predestined because most of America's teaching faculty are denied necessities like collegiality, job security, academic freedom, access to libraries and databases, and, for many, offices and desks.
But in advocating for institutional accountability under the health-care law, adjuncts face a dilemma: If colleges do not adequately recognize all of the hours adjuncts put into the teaching process—prep time, grading, student conferences, etc.—then the colleges will evade their intended obligations and continue to abuse their adjuncts. If, on the other hand, colleges do take all such time into account, then adjuncts' courses will be cut back to avoid classifying contingent workers as full-time employees for whom health benefits must be provided.
Any real, long-term solutions must impose accountability and might include, but not be limited to, the following:
- Prohibiting the allocation of teaching schedules for the primary purpose of evading healthcare coverage responsibility, together with a presumption that courses which could be taught by a full-timer, if split up among adjuncts, are being split up to evade obeying the law. This includes the use of multipart serial courses (for example, Business Law I, Business Law II, and Business Law III) for which the qualifications to teach all the courses in the series are substantially the same.
- Prohibiting the practice of keeping an adjunct idle for a semester for the primary purpose of classifying her as a seasonal employee.
- Requiring full and open disclosure of total hours of work, and how they were determined.
Another approach, which lies beyond the IRS's authority and would require Congressional action, would be to mandate that all employees other than full-time be provided health-care coverage on a pro-rata basis.
Steven M. Bloom, director of federal relations at the American Council on Education, has proposed two methods of determining adjuncts' hours: One would be based on percentage of full-time course load, and the other would apply a ratio of outside-the-classroom hours to "face time" in the classroom. Either approach is sensible in theory but would require that appropriate ratios be used. Since colleges and courses are quite diverse on an individual institutional level, let alone nationally, there can be no reasonable "one size fits all" ratio.
One suggestion, made by several speakers at the hearing, is to have the applicable ratios negotiated between college administrations and the adjuncts themselves. Such an approach has merit but poses many practical hurdles. Resolution of disagreements would be an issue. The colleges would, of course, seek the lowest ratio possible; at the hearing, the American Council on Education grudgingly suggested a ratio of one hour of preparation time for each hour of classroom teaching, woefully inadequate for many if not most adjunct situations.
And where a labor union representing both adjuncts and full-timers is involved, this subject must be negotiated and approved by adjuncts alone, for even the best-intentioned unions cannot possibly avoid conflicts between full-time interests and adjunct interests; indeed, some faculty unions have already limited their adjuncts' course loads.
But that approach should be explored, because it would facilitate frank discussions between college officials and adjuncts regarding the needs of institutions and adjuncts alike. That would be a giant step toward the institutional accountability that today is so sorely lacking.