Federal Judge Rules Against Faculty Union Over CUNY Layoff of 2,800 Adjuncts
by Kevin Stawicki
The City University of New York illegally laid off thousands of adjunct faculty members despite getting over $251 million in federal funds to protect against the coronavirus pandemic’s economic fallout, according to a July 1, 2020 lawsuit filed by a union representing the university’s professional staff.
The Professional Staff Congress, which represents about 30,000 CUNY professional staff members, said in its complaint Wednesday that the university violated the Coronavirus Aid, Relief and Economic Security, or CARES, Act by showing the door to 2,800 of its 12,000 adjuncts during the pandemic.
“It is fair to say there would be no CUNY without adjunct faculty and staff,” the union said in the complaint filed in New York federal court. “In spite of this, CUNY has chosen to repay the adjuncts’ dedication and hard work with pink slips: it is laying off 2,800 of them.”
By enacting the CARES Act in March, Congress sought to ward off as much financial despair as possible by requiring employers receiving federal funds to prove that they continued to pay workers “to the greatest extent possible,” the union said, citing the act.
“CUNY cannot meet this burden,” the union said. “CUNY’s decision to lay off thousands of adjuncts is primarily motivated by its belief that it will suffer COVID-19 related funding reductions.”
But the university system is projected to have $52 million in reserves by the end of the fiscal year despite the pandemic, the union said, citing $552 million allocated in New York state’s 2020 budget and another $1.2 billion from New York City’s budget passed in July.
At the very least, CUNY has $132 million from the $251 million provided by the CARES Act and an additional $52 million in year-end surplus to pay the adjuncts, the union said, noting that the university didn’t even consider other cost-cutting measures, like executive compensation reductions, before announcing the adjunct layoffs in May.
Adjunct faculty are at the center of the university experience, the union said, noting how these workers often teach more classes and advise more students than other faculty members. They also put significant effort into transitioning to online learning when campuses across the city were shut down, according to the complaint.
PSC President Barbara Bowen alleged that the only explicit requirement under the CARES Act for higher education is that institutions should, to the greatest extent possible, keep employees on payroll.
“With $132 million coming into CUNY from the CARES Act in institutional funds, there is no justification for laying off 2,800 people,” she said. “Laying off 2,800 employees at a time when CUNY is especially crucial to the renewal of the economy of New York and the communities that rely on it sends a message that CUNY won’t be there for them.”
The suit called for the immediate reinstatement of the adjuncts who lost their jobs and for the university to stop sidelining even more workers.
“In sum, the laid-off CUNY adjuncts will face a perfect storm of economic insecurity,” the union said. “Many will be plunged into poverty, which Gandhi described as the ‘worst kind of violence.'”
On July 28 the college’s counsel responded to the union’s lawsuit.
The CARES Act doesn’t create a path for worker lawsuits claiming that a university misused coronavirus aid, the City University of New York told a Manhattan federal judge, urging the court not to force it to rehire 2,800 adjuncts and other workers whose contracts ended in June.
CUNY filed a brief opposing Professional Staff Congress/CUNY’s motion for an injunction that would make the university hire those laid-off adjunct staff members for the fall 2020 semester, arguing that the professors’ union has no right to file a Coronavirus Aid, Relief, and Economic Security Act suit in the first place.
“The language of the pertinent provision of the CARES Act focuses entirely on the entity regulated, not the persons who might benefit from the regulation,” the university said. “The language providing that an institution shall ‘to the greatest extent practicable, continue to pay its employees and contractors’ confers discretion on the institution, militating against any private right of action in the unfortunate event that, as here, it is not practicable for an institution to renew all expiring contracts.”
However, adjuncts may file complaints with the U.S. departments of Education and Justice under longstanding processes for ensuring compliance with rules governing use of federal funds, CUNY said. It’s more accurate to characterize the decision not to rehire the adjuncts, whose terms ended June 30, as nonrenewals of their contracts rather than layoffs, the university contended.
The coronavirus relief bill, passed in March, allocated $31 billion for educational institutions. Section 18006 requires schools that receive funds to continue paying workers to “the greatest extent practicable.”
CUNY said it uses funds it receives under the CARES Act to support the university’s primary mission to help students transition to remote learning.
“Put bluntly, plaintiff asserts that its members’ interest in employment is more important than the students’ interest in being able to continue their education in this time of crisis,” the university said.
On August 12, 2020 a federal judge sided with CUNY.
A New York federal judge ruled that the City University of New York isn’t required to reinstate thousands of faculty members it recently laid off, taking issue with a union’s claim that the coronavirus relief bill calls on the school to retain those members after receiving federal aid.
The Professional Staff Congress, on July 1 had requested a preliminary injunction requiring the school to reinstate the laid-off employees.
But U.S. District Judge Jed Rakoff on Wednesday denied the union’s motion for a preliminary injunction, holding that Congress didn’t intend to create a private remedy for enforcement of the relevant relief bill provision. The act’s requirement that educational institutions keep paying employees “to the greatest extent practicable” isn’t a right enforceable by the employees themselves, he said.
Specifically, the judge decided that the union didn’t show that the relevant provision of the relief bill was focused on the needs of the individuals, in this case, the professors, rather than on the operations of CUNY, Judge Rakoff said. And that means the law doesn’t create an individual right to continued employment on the part of the adjuncts represented by the union, the judge said.
“Rather than, for example, stating that the funding recipients shall, to the greatest extent practicable, retain each employee, Congress instead spoke of employees in the aggregate, and the need of the institution to try to retain them consistent with the institution’s practicability,” Judge Rakoff said. “That language suggests a generalized duty imposed on the institution rather than an individualized right vested in each employee.”
On top of that, the law provides no statutory guidance as to how a funding recipient should determine the “practicability” of retaining its employees, Judge Rakoff added. Therefore, even if the provision did confer a right on adjunct employees, that right “would be too vague for consistent and meaningful judicial enforcement,” he said.
PSC President Barbara Bowen said in a statement after the judge’s decision was made public that the “disappointing ruling does not change the PSC’s commitment to fight for the jobs and safety of all of our members.”
“Unions and working people cannot rely on the courts as our only vehicle of struggle,” Bowen said. “The PSC will continue to fight on every front for the thousands of adjuncts who were callously thrown away by CUNY and for every member of the faculty and professional staff. The union is also exploring the possibility of an appeal of the judge’s order.”
CUNY declined to comment.
The workers were represented by Hanan B. Kolko and Kate M. Swearengen of Cohen Weiss & Simon LLP and Peter L. Zwiebach of the Professional Staff Congress.
Counsel information for CUNY could not be immediately determined.
The case was Professional Staff Congress/CUNY v. The City University of New York, case number 1:20-cv-05060, in the U.S. District Court for the Southern District of New York.
