The Honorable Stephen D. Bright State Representative 127 Southshore Drive Maumelle, AR 72113-5810
Dear Representative Bright:
I am writing in response to your request for my opinion on the following question:
Does A.C.A. § 11-10-509(a) apply to adjunct faculty at higher education facilities or does this apply to K12 employees only?
RESPONSE
It is my opinion that this provision is also generally applicable to adjunct faculty at higher education facilities.
Arkansas Code Annotated § 11-10-509(a) provides that employees of educational institutions are not eligible for unemployment compensation benefits during certain time periods. It states:
With respect to service performed in an instructional, research, or principal administrative capacity for an educational institution, benefits shall not be paid based on services for any week of unemployment commencing during the period between two (2) successive academic years or terms, during a similar period between two (2) regular but not successive terms, or during a period of paid sabbatical leave provided for in the individual's contract to any individual if the individual performs the services in the first of the academic years or terms and if there is a contract or a reasonable assurance that the individual will perform services in any such capacity for any educational institution in the second of the academic years or terms.
A.C.A. § 11-10-509(a) (Repl. 2002) (emphasis added).
My conclusion that the term "educational institution" as used in this Code section includes institutions of higher education is based upon a separate section of the Arkansas Employment Security Law, A.C.A. §11-10-220. This section sets out criteria for identifying two categories of "educational institutions": "institution[s] of higher education" and "educational institution[s] other than . . . institution[s] of higher education." Id. at subsections (a)(1) and (b). A further review of the defining criteria is unnecessary, other than to note that according to §11-10-220, an institution of higher education is a particular type of educational institution. The section provides in relevant part:
(a)(1) As used in this chapter, unless the context clearly requires otherwise, an "institution of higher education" means an educational institution which [has the following characteristics].1
* * *
(b) For the purposes of this chapter, an educational institution, other than an institution of higher education, is one [with the following characteristics].2
An institution of higher education is therefore distinguished from other educational institutions under this definition. Critical to your question, however, is the fact that unless the context requires otherwise, the generic term "educational institution" under the Employment Security Law includes both institutions of higher education and other institutions as defined.
Turning, then, to A.C.A. § 11-10-509(a), supra, I find nothing to suggest that the term "educational institution" as used therein does not encompass institutions of higher education. This conclusion is supported, moreover, by the Arkansas Court of Appeals' decision in Kuhnv. Director, AESD, 83 Ark. App. 201, 121 S.W.3d 517 (2003), an unemployment compensation case involving a part-time adjunct instructor for Webster University. The Arkansas Board of Review interpreted A.C.A. § 11-10-509(a) to disqualify this individual from receiving benefits for being laid off from her full-time, non-educational employment, because of the education wages she earned between academic terms. There was no question as to the general applicability § 11-10-509(a) in this case. The Court of Appeals' reversal was based, instead, upon its conclusion that § 11-10-509(a) was inapplicable because this individual had neither filed a claim for nor been paid benefits based upon her work for an educational institution. The Court stated:
The limitations of this statute apply only when the benefits sought are based upon the claimant's instructional work for an educational institution and the other requirements of the statute are met. A claimant who seeks benefits based upon her noneducational employment is not precluded from receiving benefits during between-term periods simply because education-related wages appear in her base period.
83 Ark. App. at 205.
Clearly, A.C.A. § 11-10-509(a) would have applied had the adjunct faculty member sought benefits based upon instructional services at Webster. In response to your question, therefore, I conclude that this Code section generally applies to adjunct faculty at higher education institutions.
Assistant Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.
Sincerely,
MIKE BEEBE Attorney General
MB:EAW/cyh
1 The remainder of this subsection sets out the criteria for identifying an "institution of higher education."
2 The subsection similarly lists the criteria that defines "an educational institution, other than an institution of higher education," concluding by adding that it is one "[w]hich does not met the definition of an `institution of higher education' as set forth in subsection (a) of this section." A.C.A. § 11-10-220(b)(4).