Questions and Answers from Town Halls
3/31/2020
BELOW, WE HAVE CATEGORIZED AND PARAPHRASED QUESTIONS WE RECEIVED FROM MEMBERS AT OUR FIRST TOWN HALL ON
MARCH 27TH, AND AT THE JUNE 4TH MEETING WHEN ATTORNEYS LAUREN HOYE AND RYAN HANCOCK RESPONDED TO QUESTIONS ABOUT
THE FIRST FEDERAL CORONAVIRUS RELIEF ACT (FFCRA) AND THE AMERICANS WITH DISABILITIES ACT (ADA).
THE QUESTIONS BELOW WITH RED ICONS ARE FROM THE MARCH 27TH TOWN HALL, BLUE ICONS ARE FROM JUNE 4TH.
Wage Freezes and Temple's Economic Condition
- My partner has lost work, leaving me as the only breadwinner in our household, so I’m particularly concerned about wage freezes. What if the administration demands this?
- What assumptions are the university’s management working with to calculate the need for the 5% budget cut? Does it only take into account the extra costs that came up this spring, or is it assuming declines in tuition, etc.?
It is painful to hear of this and so many other hardships our colleagues and their families are experiencing at this time.
The assumptions informing the budget cut are not clear, though the President’s and Provost’s email from March 5th, where they announced the hiring freeze for staff and the need for budget plans that reflect a 5% reduction indicate that the administration is looking toward future semesters, not just shortfalls from this term. But the question requires further investigation.
In such an environment, it is not surprising that the administration has approached us asking for us to forgo the raises scheduled for this coming year (1.625% across-the-board and 1.25% merit). But we have a settled contract, which means that such concessions cannot be forced upon us. Workers without a union, such as the university’s administrators, have no legal mechanism for pushing back, and did not receive raises in 2019-20.
In response to this request, we have already started to demand information that would justify such a request, including:
- What specific financial projections make this necessary?
- Who else is being asked to sacrifice and how much?
- What other steps could be taken instead, such as spending down reserves?
- What is the timetable for getting clear information on Temple’s enrollment and other factors that are critical to the university’s financial health?
We will not make concessions prematurely and without accurate information. There are many ways in which a budget can be reduced by 5%; and, at a time like this, the university’s focus should be on maintaining and enhancing students’ educational experience and the research and productivity of the faculty and staff.
We will keep you well informed about how this issue unfolds and will be seeking out your input.
Hiring Freeze, Job Cutbacks and Workload Increases
- There have been rumors of major budget cuts and cuts to adjunct and NTT positions, with increases in workload for the TT and NTT folks who are left. Has TAUP heard anything about this?
- How do we prepare and respond to the upcoming austerity and potential budget cuts, hiring freezes, tenure freezes, risk to jobs of technicians, adjuncts, and staff?
- Can we consider demanding contract extensions for adjuncts?
- We have been asked to take on the duties of an administrative assistant whose job was terminated. Now, we’re doing that work as well as our own. Any recourse for that?
On cuts to positions:
We have received various rumors of potential job cuts at the school/college level. One college says many NTTs will not be renewed while another says that despite rumors to the contrary, NTT renewals will go ahead as planned. At this point, we can only treat these as rumors, though we understand how unsettling they are. What is certain is that the President and Provost have mandated a 5% budget cut for the coming year.
Before everyone left campus, deposits for the Fall were high. Everyone is hoping that face-to-face classes can be resumed and that the fallout from this Spring can be managed without the loss of jobs. Until there is more clarity about Fall enrollment, the state appropriation and other elements important to Temple’s bottom line, any prediction of the number of faculty, academic professionals and librarians that will be needed for the next academic year is conjectural.
If there is a scenario where there would be a significant reduction in revenue, offers for early retirements might occur that may preserve other positions. Any retirement plan, whether forwarded by a single college or school or university wide, must be negotiated with TAUP. There has been no mention of an early retirement plan yet by the administration.
The contract also has strict guidelines for what occurs if the administration declares “a demonstrably bona-fide financial exigency” and engages in what is called retrenchment. The administration must discuss its plans with the union and the Faculty Senate. Before members of the bargaining unit are laid off, there is the possibility of being shifted to a job with different responsibilities for a period of time. There is also a system for determining the order of those who would be laid off and re-appointing people who have been laid off due to retrenchment.
Through our contract, we have started to prepare for these concerns by steadily increasing the job security of members of the CBU, though adjuncts and NTTs with fewer years of experience do not yet have the level of job security we’ve fought to attain. The contract does have new language to strengthen the protections for NTTs with 3 or more years of employment.
If there is a move to cut jobs that will affect members of the TAUP bargaining unit, we will fight to maintain them to the degree that we can during a financial emergency.
On extensions for adjuncts: Though our contract does not make any provision for something like this, there are things that could be negotiated to maintain as many adjunct jobs as possible. The EC will discuss options for consideration.
We believe that the university should be showing adjuncts an extra degree of gratitude for their efforts this term. This could take many forms. In the very least, adjuncts who taught this term should be rehired in the future ahead of any new prospect. We also believe that courses that are not significantly under-enrolled in the upcoming academic year should not be cancelled, both for the sake of continuity for our students, and support of our colleagues.
On workload: TAUP will insist on the contract’s basic standard of “fair and reasonable” for all members of the bargaining unit There are also limits on the number of credit hours and the requirement that a faculty member’s approval be gained for certain kinds of reassignment. Librarians have a limit of 35 hours per week of work. If you are being asked to do more than you should be doing, please reach out to the union.
In addition, there may be a reduction in staff. Many of our staff members belong to other unions, and our members should not be expanding their job responsibilities and usurping the work of other campus workers — particularly union workers. If staff are laid off, the school or departmental administrators must find a way for their work to be covered by individuals who will be affiliated with the appropriate union.
- I received an email offer for my NTT for the 2020-21 academic year, but not the contract itself. Is the email binding if I have not signed a contract?
If you have received a written offer, you’ll be in a fairly good position to argue from if the offer is challenged.
Compensation for the exceptional time commitment that was required to switch to online instruction
- Many universities gave their faculty paid time off to move their courses online. They extended Spring Breaks or cancelled classes for a week or more. I am not aware of any institutions that are extending their semester to adjust for the week without classes. Temple faculty had virtually no prep time. Those who have taught online before spent many extra hours helping colleagues. Are we going to be compensated for the extra (unpaid) work we were required to do?
- Will adjuncts receive compensation for additional work required to transfer classes online?
- Will there be compensation for costs personally incurred by working off campus (internet, printing, etc.)?
TAUP agrees that the administration should have cancelled classes to give faculty more time to make the transition to online instruction, and that our bargaining unit members deserve to be rewarded for the exceptional work that has been done to transition to working from home. The Community College of Philadelphia has proposed extending the semester to make up for lost class time, and there are concerns among their members about having to work when other commitments had been scheduled. In addition, though they are being paid now, at this moment it sounds like they would not receive additional pay for the extension.
As for extra compensation, this is something the EC will discuss in order to work through the potential options. There is no contractual provision for what has occurred, which makes a demand for compensation more challenging.
If you have increased bills due to the shift to online teaching, it would be best to address it by organizing with your colleagues and approaching your chair or dean. If you would like help in reaching out to bring your colleagues together in an effort like this, fill out this form and our organizer, Jenna Siegel will be in touch with you.
Evaluating Members: Tenure, Promotion, and SFFs
- The pandemic is disrupting research productivity and teaching effectiveness. Other universities and colleges are providing one-year tenure clock extensions to tenure-track faculty. Will TAUP be advocating for one-year tenure clock extensions for tenure-track faculty?
- How will allowances be made for these unique circumstances in the case of other personnel decisions, such as promotions for NTTs?
- How will SFFs be used given the unique disruption caused by COVID-19? How will merit work to address unfair SFFs this year and declines in research productivity?
These are some of the topics that the administration contacted TAUP to discuss. We appreciate their consultative spiritand hope that it continues on this and other issues.
Clock for tenure and regular appointment:
TAUP has made it clear that we believe there should be one-year extensions for tenure-track faculty and librarians on the regular appointment track, including those coming up next year, whether for the first time or in their terminal year. A member who contacted us urged that this should be an opt-out, and that is what we lobbied for in discussing it with the administration. The extension should be automatic but individuals can decide not to take advantage of it. The administration has not yet made a decision on this, but we have been told to expect one soon.
SFFs: There seems to be understanding among the administration that this has been the most challenging semester that almost everyone has ever faced, students and faculty alike. Our new contract language states that SFFs cannot be the primary or sole means of evaluation that results in a personnel decision with the exception of a disciplinary investigation. The SFFs this term should be viewed in the context of the challenges of this semester in addition to the bias and validity concerns we’re all well aware of. Faculty should have agency to choose how this semester’s SFFs are used (i.e. if they are included in tenure/promotion/merit/considerations) and they should not be used as a reason to deny a reappointment of and NTT or adjunct in the upcoming year.. The administration has not reached a decision on this issue, but we have been told that one should be expected soon.
This year’s merit, awarded in May, will not be affected by SFFs at all, since the merit process will have concluded before SFFs are filled out.
Other personnel decisions: Just as we recommend that the tenure clock be extended for a year, we urge the administration to take into account the uniquely challenging nature of this semester when considering other personnel decisions, such as promotions and renewals. Our members are facing increased workload as they juggle courses, research, and family responsibilities. They had to switch on the fly to teaching online and have risen to that challenge with remarkable professionalism and dedication. This needs to be recognized.
Evaluating Students, Academic Freedom, and Intellectual Property
- I’m concerned about Canvas intrusions by supervisors. Related to this, since I’m recording my synchronous Zoom sessions are those recordings available to anyone other than ourselves and our students?
- Can you clarify the privacy issues with recording synchronous classes?
TAUP is concerned about this and other issues relating to academic freedom, student privacy, and intellectual property.
Intellectual property rights and the intrusion of supervisors are critical issues at this time. There isn’t clarity about the ownership of intellectual property that is posted on a Canvas site. The union and the administration are not in agreement on whether the academic freedom part of the contract, which is in the Preamble, is formally part of the contract (and thus enforceable). We have always considered it to be so. Since there isn’t a clear answer from the university about the ownership of your intellectual property (outside of specific agreements for some research work), you may want to discuss the issue with your chair or dean. You may also want to consider what platform(s) you post your material on, who controls it, and who has access.
We have been advised that Pennsylvania’s statute on recordings would likely not apply to Zoom courses, since the statute is restricted to situations in which the parties have a reasonable expectation of privacy. But we are continuing to seek guidance on the questions around privacy and ownership raised by the presence of administrators on Canvas sites.
There have been reports from multiple colleges of administrators being added to Canvas courses without faculty knowledge or consent as well as demands or pressure on faculty to record their lectures or engage in less synchronous teaching. Some of the justifications for this seem variously sensible and defensible. For instance, students with disabilities and others unable to make class at a specific time may need access to recordings. Or, if an instructor gets sick, members have been told, it’s important to have an administrator present on Canvas so that the transition is as seamless as possible.
Other reasons that have been offered for increased administrative presence include the need to record lectures or log on to TU Portal to ensure that faculty are actually teaching, or the need for all lectures to be recorded to serve as the basis for a teaching evaluation, are wrong-headed and/or downright insulting.
TAUP will continue to gather information about these issues and will take our concerns and objections to the administration in pursuit of an agreement that balances the legitimate values in play here.
- I received an announcement that incompletes will not be accepted this term.
We raised this with the Vice Dean of a college where this was reported from and were told this was not true. That doesn’t mean it isn’t happening elsewhere. It seems more important this semester than ever to be able to offer an incomplete or medical leave to a sick student, or someone who is a caretaker or is in a difficult environment to accomplish work in. We know there has been some discussion about rolling back the requirement of a 50%+ completion of the work. This issue is important to us and our students, and the administration needs to be decisive on this and other issues related to evaluating students (credit/no credit, pass/fail, how to do labs, fieldwork, etc.)
Sabbatical Extension
- Faculty who are on research leave/sabbatical are losing research time especially if they are caring for young children at home with school/daycare closed. What options are there for possibly extending sabbatical or addressing this issue?
While not all our members have access to sabbaticals, those who do have planned for years to make the best use of their time to engage in research, creative, and pedagogical projects. There is no contractual provision for such an extension and with fiscal pressures increasing, the EC will discuss possible approaches, but the administration may be loath to extend sabbaticals. This is something that a member may want to discuss with their dean, as it is less likely that we will be able to receive a positive decision from central administration.
Solidarity with other campus workers
- What can/should we (as a union and as individual members) be doing to support low wage workers at Temple who are likely being hit much harder by disruptions to Temple’s operations than we are?
Thank you for this expression of solidarity! We have been in touch with many other unions that are part of CLOUT (Coalition of Labor Organizations United at Temple), including AFSCME (which represents many clerical workers), TUGSA (graduate workers), BUE (building/janitorial staff), PASNAP (nurses) and others. Together, we have been working with elected officials and other supporters to:
- Advocate for Personal Protective Equipment sorely needed by those working at the hospital.
- Push for Temple to relax its sick leave policies for workers, which require even those quarantined after contracting COVID-19 use their accrued sick leave and, once that is exhausted, to go onto unpaid leave.
- Pressure Temple to acknowledge that the federal Families First Coronavirus Response Act (FFCRA), which includes sick leave and unemployment provisions, applies to Temple. The act applies to businesses with under 500 employees, but also to public entities, and we have been told by allies in Harrisburg that Temple should be eligible.
- On 3/27, we sent a letter to the Board of Trustees, the CEO of Temple Hospital and President Englert and Provost Epps outlining our shared expectations as to how ALL workers at Temple should be treated–covering topics such as health and safety, sick leave, potential layoffs, and health insurance.
We will continue to be in dialogue with our brothers and sisters in other unions to do whatever we can together to ensure campus workers are operating under safe conditions and are treated fairly in the midst of this crisis.
The Future of Temple and Higher Education
- What will the next academic year look like in terms of a second wave of COVID-19?
- I am concerned about the long-term outlook for higher education. Many students and their families will have lost their jobs or worse; they may not be able to return to Temple. International student enrollment will most certainly decline. A decline in tuition revenue seems likely. What contingency plans is the university considering to deal with these longer-term impacts? How may these plans impact the status of members of our bargaining unit?
The administration does not include the union in many of the discussions mentioned, though we have been consulted on specific issues directly related to the contract. There are many questions that may not have answers yet. We know that every department and school at the university is preparing a budget that is reduced by 5%, that the university is predicting declines in Summer and Fall enrollment, the state appropriation, and returns on the endowment, and that they are trying to fully understand what the fallout will be from this pandemic.
The union is left in a position to consider how our members may be affected, and the EC is beginning to think through a number of different scenarios. We have a challenging road ahead and predicting its exact contours is difficult. As we have new information, we will share it.
We do know that it is more important than ever to be actively involved in this work, even though we also know that time is very hard to come by right now as we cope with the unique stress of this moment. The more members communicate and coordinate with each other and union leadership, the more we can understand the issues and take on fights that need to be addressed. The more involved members are, the stronger we are in our ability to protect each other and the people and values at the heart of both TAUP and Temple’s mission.
If someone is in the age group considered to be especially COVID vulnerable, is the school obligated to accommodate their request to teach online?
LH: So in order for something to be a disability under the ADA, it has to substantially limit a major life activity. As Ryan said, since 2009, the standard for approving a disability is much less than it used to be. And to be perfectly frank, I was a panelist on a call this morning with a few management-side employment lawyers who were advising their clients that for purposes of reasonable accommodations right now, just assume the person has a disability. Don’t fight them over whether it’s a disability or not. Assume it is and then engage in the required interactive process with them to figure out whether a reasonable accommodation is required and what it may be. So I think there are some employers that are essentially saying we’re just going to treat everything as a disability.
I think that age alone is not going to be a disability. I think that you would need to prove some other underlying health condition — some other concern that you have related to your health or your ability. And in order to establish that you have a disability, I think that simply being of an advanced age would probably not be enough to constitute a disability under the law.
Can we plan to teach online or must we request it? Can an employer demand medical documentation?
RH: I don’t see there’s a problem with you saying “Hey, can I teach online”. Of course, they could say no, right? And then what do you do? And if it is related to an underlying health condition, you do have the law, but the law does require you to disclose that you need a reasonable accommodation because of “x”. And then the employer has to engage in the interactive process with you, and they are allowed to gather some medical documentation, but that is limited to the specific requirements. It’s really fact-specific.
That’s what makes Disability Law pretty difficult. And what I mean by that is, for example, say that I lost my arm in an accident. My request for an accommodation is that I can’t lift books over 20 pounds. Well, the employer has no right to ask you about your reasonable accommodation. It’s obvious and known that I’m missing my arm and that’s the reason why I need to be accommodated. In that case, the employer could not ask for your medical condition.
But in the scenarios that you’re really getting into now with COVID related concerns like underlying diabetes, etc., you are going to have to disclose that. Now, the caveat or not even a caveat, but the good thing is that it’s protected health/medical information, and that medical information has to be kept separate from your employee file. It has to be under lock and key and only a very limited number of individuals can have access to that medical information. So unfortunately, it’s assessed on a case by case basis, and it really depends on what are your essential job functions, what is your disability, what is the underlying condition? What’s your request for accommodation, those are the three things that you and your employer are going to try to work out in working toward a reasonable accommodation.
Someone may be wondering: Can I ask for an accommodation without disclosing information? Of course you can. I just don’t know what kind of power that has with the employer. Some employers will say, “Sure, you can do online teaching and you don’t even have to go through the reasonable accommodation process”. I find that unlikely because then most people would be requesting that at this point, and they would have an issue with the number of requests they have.
Steve Newman (SN): Just to underscore what Ryan said, but to put a finer point on it relative to Temple and its organizational structure, Sharon Boyle (the VP for Human Resources) did assure me that if you go to HR, you can’t do the ADA anonymously. You do have to divulge who you are and what you’re suffering from, what your disability might be. But they do not share the information about your particular disability with, let’s say, the dean, who supervises you. They will just say: “This accommodation has been asked for; would it be an undue hardship for you to grant it?”
What if I do not believe the university is reasonably protecting us from the virus? What recourse do we have if we believe that Temple’s plans are not providing a sufficiently safe workplace?
LH: There’s a non-legal answer to this, which I think has to do with publicity. If Temple is not taking the recommended course of action by the CDC and the state Health Department in the yellow phase, or the green phase, that’s going to impact not just you guys. That’s going to impact students. That’s going to impact other employees on campus. That’s going to impact visitors on campus. And, in my opinion, that’s the type of issue that you raise hell about. If Temple is not taking appropriate steps with respect to your bargaining unit members, they’re not taking the steps with respect to anybody else on campus or in the community.
RH: From a legal perspective, there are a couple of options. Let’s just take the scenario, and I don’t think that they’re going to do this, but let’s take the scenario that they just don’t fully comply with the basic CDC guidelines. Well, we could file a TRO (temporary restraining order) against Temple to comply, and raise hell around the issues. I think we win that through the public. I mean, the public gets it, right? One thing that they get is that COVID impacts workers greatly.
With regard to disability or class cases or actions, that remains a possibility, too. So if, for example, a policy or procedure impacts a certain class more than others, so that could either be a disability-related class, or that could be an age-related class, there is a potential that exists that you could file with the state civil rights agency or the federal civil rights agency. Now, those are going to be fact-specific — we can take that when we go but I think it’s also really important to remind everybody that the legal analysis is going to change greatly from yellow versus green. Because in the yellow phase CDC guidelines, many more guidelines apply than in the green which is very limited, right?
So it really is fact dependent upon where we land up when school starts. That’s really a factor.
With a TRO, there’s often a pretty high standard to win. Basically what you would be doing is saying in this case, if Temple did nothing, we would file a lawsuit saying: Temple needs to comply with the CDC guidelines to protect its workers and students, and we are requesting an order that includes social distancing, providing PPE, all of those sorts of things. I’m not saying it would be successful or not. But it is an effort that would draw attention to the issue.
Librarians and APs are subject to a sick leave policy which reprimands/punishes staff who take more than five sick days year even if they have accrued more than that. Is that legal?
LH: Is that what your contract calls for?
Leanne Finnigan: There’s actually nothing in the contract. It’s within the work rules university wide. So unless it’s covered in somebody’s contract, that’s what it goes to by default, so it’s not just in our bargaining unit.
LH: Okay, so your contract as to academic professionals and librarians, your contract is silent as to sick leave. So that is something you can bargain over. And in your next round of negotiations, you certainly can make a proposal and demand bargaining over the sick leave policy. In a unionized setting, typically the sick leave policy is what the contract says it is. Here you don’t have any provisions on it. And, and so the politics so the five days is based on the temple internal policy that’s unilaterally issued, is that right? Yeah. So it’s Unless there’s a contract violation there, which it doesn’t sound like there’s a contract violation there, you wouldn’t have a grievance necessarily related to that. It’s something that I think that you should in the future you can consider with your bargaining team, whether you want to make a proposal on that.
RH: It’s definitely not illegal. It’s definitely 100% not illegal. But I will give one more caveat to that because actually because it is a pandemic, and so this might change things. The COVID being defined as a pandemic is really important because the EEOC — they interpret the ADA and Title VII, etc. They have certain powers that flow from them and the CDC, etc. It’s a pandemic, so certain things are relaxed. So it matters whether we’re actually under a pandemic or not. But let’s assume that we are still under a pandemic when we start back at school. If that’s true, one of the things that the EEOC requires, or has suggested, including the CDC, is a relaxation of leave policies, punitive leave policies. So, yes, you may not get more paid leave, but that shouldn’t be held against you. It should not be used punitively against you because what they’re trying to do if you’re in a pandemic is to stop the spread of the pandemic. So I would say that while it’s not illegal on its face, depending on where we are in August, there is a potential that we could push back a little bit on the sick leave policies with regard to its punitive nature.
There is a concern that sensitive health information could be used against the employee. What does the law mandate and what should someone do if they believe their health information has been used against them?
LH: Sure. So as Ryan mentioned earlier, there are rules about how this information is stored. This is personal health information. Temple is legally required to segregate it from an employee’s regular personnel file in a separate health file. And HR should be doing that, which doesn’t necessarily mean that they are. As we sit here today, what they are and are not doing I don’t know, and we can only tell you what they should be doing.
Typically the way the process works at Temple in my experience is that when an employee makes a request for a reasonable accommodation, or even if they don’t use that magic language, but they somehow indicate, as Ryan said, “I need help with my job” in some way, what happens is that Temple HR will ask the employee to get an ADA certification completed by their doctor that essentially certifies: this is the disability. This is the accommodation that the person is seeking. The doctor signs off on that form, which is available online. The doctor fills that out, you turn it into HR, and then the interactive process goes from there.
I want to reiterate that the interactive process under the ADA is an obligation on both the employee and the employer. It’s not just on the employer. So you can’t as an employee, say, “I need a reasonable accommodation, but I’m not going to tell you why, or what for, or what I need and I’m not going to provide the ADA certification. I’m not going to cooperate in the process”. It’s a mutual obligation. It’s supposed to be a process that both of the parties participate in.
We sometimes get questions about,“why should I have to provide any information? Why should I have to tell them what my disability is? Why should I have to tell them what I need?” But under the law the interactive process is a joint process that requires the employee to participate in it. And the risk that an employee runs is that if the employee refuses to participate in the interactive process and refuses to provide the employer with the information about what kind of accommodation they need or what their issue is, and why they need an accommodation, you run the risk of Temple saying, “well, the employee wouldn’t engage with us. So that essentially eliminated our need to do anything because the employee wouldn’t participate”.