When she’s not singing jazz at Bay Area clubs, Mwanza Furaha spends her days feeding hungry students as a cook for the Lagunitas School District or ferrying them across busy Sir Francis Drake Boulevard as one of the school’s crossing guards. But like many non-teaching school employees, Ms. Furaha is hard-pressed to support herself when school breaks for summer recess.
That’s why last year, Ms. Furaha, who is in her 70s, sought to supplement her income by filing for unemployment insurance benefits, without which she said could not pay her $750 rent for a room in Woodacre. What she did not anticipate, however, was a rigmarole of a process that ended in two favorable rulings from appellate judges after the state’s Employment Development Department denied her benefits based on a determination that she had “reasonable assurance” of continued employment with the district.
Now, Ms. Furaha, like many others, believes state and federal laws on claims determinations are rigged to deny much-needed benefits to thousands of struggling, non-teacher school staff throughout California and beyond.
“They try to take you through enough hoops to make sure you don’t get the money,” said Ms. Furaha, who ultimately received $2,668 in benefits in December after filing last June. “And they know damn well that nobody’s giving a 70-year-old any other kind of full-time work.”
A Light investigation has found that Ms. Furaha’s situation is not unique. Over 100 rulings on appeals cases in dozens of states show judges broadly interpret “reasonable assurance” in their decisions to uphold or overturn lower-court rulings on benefits eligibility. Mostly, their interpretations lean toward denying benefits. In nearly every case, reasonable assurance constituted a form letter sent by a school district. Such was the case for Ms. Furaha, even though records on Judge Ira Jacobowitz’s ruling in her case show the district would make her job available the following year only if the budget could continue funding it. (Judge Jacobowitz, an administrative law judge with the California Unemployment Insurance Appeals Board, ruled that despite the letter, the district’s fuzzy budgetary commitments did not reasonably assure that Ms. Furaha would remain employed.)
But those rulings only scratch the surface of how many school employees file for benefits and are denied. Unlike Ms. Furaha, most claimants forego the time and effort necessary to challenge the determinations of eligibility review bodies like the Employment Development Department, once their claims are shot down. According to one lawyer, the number of people in the state who miss out on school unemployment benefits is “literally thousands.”
“The intent is clear,” said Stewart Weinberg, a San Francisco attorney who recently represented over two-dozen San Francisco Unified School District employees in a failed appeal for benefits. “The intent is, if there’s any way to deny you benefits over the summer and you’re a school employee, they’re going to find it.”
Since 2010, the Employment Development Department has made 409,619 eligibility determinations for school employees based on reasonable assurance, according to department records obtained by the Light. But tracking down how many of those employees are denied benefits is complicated by the fact that the department does not keep records of the specific outcomes of eligibility determinations. Rather, it only records the fact that an outcome was determined, which is all that is required by law.
“There’s nothing that says out of this many employees who applied, this many were denied,” said Loree Levy, a department spokeswoman. “There’s nothing that requires that information from us.”
Last year, the department doled out $103.4 million in school-employee benefits, down from $313.2 million during the 2010 fiscal year. On top of that, California districts this year paid 0.5 percent out of each employee’s check to the Employment Development Department’s unemployment insurance fund, which amassed a $521.3 million balance this fiscal year. This year, 72 community college districts and 1,330 public schools, county offices of education and chartered schools in California paid into the fund.
Many districts, including Lagunitas, allow employees to set aside a portion of their checks for summertime payments, though Ms. Furaha said many opt not to do so given the small amount they already earn. And many employees who set aside money for summer, she said, do so because they do not anticipate receiving unemployment benefits.
“Because they felt they weren’t eligible for unemployment, they’ve been letting the school take money out of their checks each month,” Ms. Furaha said. “But I don’t make enough money to do that!”
Many claimants do not go through the determination process because they immediately qualify for benefits; this is true for employees who are laid off, for example. The department also awards retroactive benefits if a claimant is denied due to reasonable assurance, but is laid off later in the year.
For those like Ms. Furaha who require a determination review, a department representative interviews the claimant and makes a determination after conferring with the district on the claimant’s employment circumstances. If a claimant contests a determination, the department participates in a checks-and-balances structure in which an appeals board assigns judges to decide cases.
California, like all other states, models its unemployment insurance code on the Federal Unemployment Tax Act, which in 1970 began including school employees among those eligible for insurance benefits. Under the act, the only school employees not eligible for benefits during break periods were those under contract or able to plan for temporary unemployment. But by a series of amendments, the list of eligible candidates was slowly whittled away to deny benefits for non-teacher employees during breaks, so long as they have reasonable assurance of returning to work.
Federal law defines reasonable assurance as “a written, verbal or implied agreement that the employee will perform services in the same capacity during the ensuing academic year or term.” But not only have courts varied in their interpretations of what constitutes an academic year or term, they have done so too for reasonable assurance.
According to a study authored by Maribeth Wilt-Seibert and published in the Michigan Journal of Law Reform, courts have often based reasonable assurance on little more than “good faith” on the part of employers. Courts have also diverged widely in interpreting the capacity in which an employee may expect to return to work.
The Michigan study called for tightening the language of federal and state laws on reasonable assurance, such as revising the definition to encompass “mutual” agreement between employer and employee on the future of a job.
For Rick McHugh, a staff attorney with the National Employment Law Project, only an act of Congress would change the law and help struggling non-teachers collect benefits. “This is definitely an unnoticed injustice,” said Mr. McHugh, who has represented dozens of non-teacher employees facing reasonable-assurance cases. “These people are denied benefits because Congress intends for them to be denied benefits. And the only way it’s going to be fixed is if Congress changes or repeals the law.”
But any change to the law, he said, would have to deal with the broad legal reach of reasonable-assurance letters, such as the one Ms. Furaha received that rendered her ineligible for benefits in the eyes of Employment Development Department’s review staff. The district hands out that form letter each year to non-teacher employees and receives it from School and College Legal Services of California, which represents around 140 school districts, community colleges and county offices of education, according to senior associate general counsel Frank Zotter.
“Most educational employees don’t apply because they think they’re not eligible due to this letter,” Mr. McHugh said. “And schools are very zealous about litigating these cases if the employees do file.”
Mr. McHugh said school districts have scant incentive to assume the costs of reimbursing the state for benefits payments, as required by law.
Lagunitas School District’s superintendent, John Carroll, said districts have little say over how the Employment Development Department makes its eligibility determinations. He also said the district’s collective bargaining agreement with non-teacher staff ought to serve as enough reasonable assurance of continued employment. Under the agreement, non-teacher employees at Lagunitas retain legal rights to keep their jobs, and, in the event of a layoff, the district would go through what Mr. Carroll described as “an arduous process.”
“I learned the hard way [not to] argue with the Employment Development Department,” he said. “It’s not the employer’s role to weigh in on this.”
Many reform advocates believe changing unemployment laws would greatly benefit struggling school employees, such as one former Oakland Unified School District principal who was denied benefits amidst an uncertain job reassignment. In 2001, Ann Johnson was told by the district that she would be reassigned from her position as principal at Burckhalter Elementary School to another post in the district, though she was not told when or how the reassignment would happen until the start of the following school term. In the interim, and at the urging of her union, she applied for benefits and was denied. (Ms. Johnson could not recall whether reasonable assurance factored into her denial decision.)
“I really felt like I hadn’t been given any kind of support or assistance with the application process,” said Ms. Johnson, who said she had to borrow money that summer to cover bills and pay her mortgage. “It was a pretty rough time for me.”
As summer commences, Ms. Furaha said she plans to file for unemployment again. This time, she suspects other employees at Lagunitas School District may follow her lead.
“If we don’t get a paycheck, it makes it a little rough,” said Leonara DeNarie, a 15-year cook at Lagunitas who was denied benefits years ago and is on the fence about whether to file again this year. “You try to look for work, but nobody wants to hire you” for a few months during summer.