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Employees of Educational Institutions - Section 8-909 - Maryland Unemployment Decisions Digest - Appeals

Introduction

The provisions dealing with services performed for educational institutions are located in Section 8-909 of the Labor and Employment Article of the Annotated Code of Maryland.

Section 8-909 of the law provides that an individual who performs services for an educational institution in two successive academic years or terms may not receive benefits based on employment with the educational institution for periods of unemployment between the two successive academic years if the individual has "reasonable assurance" of employment in the second academic year or term. This restriction also applies to vacation periods and holiday recesses if the individual performs services for the employer immediately before the vacation or holiday and has reasonable assurance of performing services immediately after the vacation or holiday.

The term "educational institution" is defined in Section 8-101(n) as an institution that offers participants, students or trainees an organized course of study or training that is academic, technical, trade-oriented or preparatory for gainful employment in a recognized occupation. This includes institutions of higher education.

In determining cases under Section 8-909, the Board must first decide whether the claimant was employed by or on behalf of an educational institution. If so, the Board must then consider whether or not the claimant has reasonable assurance of returning to work.

The term "reasonable assurance" has been defined by the Board to be less than a guarantee; however, it must be based on something more than merely being on a list. In order to determine whether a claimant has reasonable assurance of returning to work, the Board considers such factors as the type of communication received by the claimant, who made the communication, when it was issued and the claimant's work history with the employer.

Even if a claimant is denied benefits because he had reasonable assurance of returning to work for a particular employer, he may still qualify for benefits based on other covered employment during his base period.

Employees of Educational Institutions - Section 8-909

I. In General

A. Scope of Section 8-909 Disqualification
The statute in question provides that benefits based on covered service in an instructional capacity cannot be paid between academic years if reasonable assurance is present. However, this provision does not operate to deny the claimant any benefits to which he may be entitled based upon other service. In this case, the claimant had reasonable assurance within the meaning of Section 8-909(b). He was denied benefits based upon his earnings with Essex Community College for the period between academic years that began in June, 1989. The claimant was not disqualified by this section from receiving benefits based on other covered service, if he was otherwise eligible. Schultz v. Essex Community College, 948-BR-89.

The claimant was previously employed as a full-time designated teacher aid for this employer through June 30, 2010. The claimant filed for unemployment benefits establishing a benefit year beginning September 19, 2010 after the claimant was informed that her full-time position would no longer be available. Subsequently, the claimant began a part-time substitute teaching position with this employer and continued to be employed in this capacity during her benefit year. The new part-time job and the prior full-time job were separate and distinct jobs. The Agency denied the claimant benefits from the week beginning June 12, 2011 through the week ending August 28, 2011. The Agency disqualified the claimant from all unemployment benefits, including wages attributable to the loss of her full-time job. The Board held that the wages attributable to the loss of the claimant’s full-time job are not affected by this decision. While the Board found sufficient evidence to support a finding that the claimant had reasonable assurance of returning to her part-time substitute teaching job, she did not have reasonable assurance of returning to her prior full-time job because that job was not available to her as of the commencement of the prior academic year. Nicholson v. Prince George’s Board of Education, 3491-BH-12.

B. Applicability of Section 8-909(b)
Prior to the summer of 1989, the claimant was a 12-month employee of the Anne Arundel County Public Schools. Therefore, this is not a case of unemployment during a period between two successive terms or during an established vacation period. Englemeyer v. Anne Arundel County Public Schools, 946-BR-89.

Section 8-909 disqualifies claimants from receiving benefits based on the covered service for the educational institution. The penalty automatically expires at the end of the summer vacation period. Therefore, the claimant is disqualified from receiving benefits based on covered service with this employer from the week beginning August 19, 1990 until September 3, 1990. McKinney v. Howard County Board of Education, 1197-BR-90. (Note: In a corrected decision the end date of the disqualification was changed to September 1,1990),

The claimant's penalty under Section 8-909(b)(i) applies during the period between two successive academic years or terms. Therefore, the claimant is disqualified for having reasonable assurance that she would return to work during the 1991-92 academic year. The disqualification, however, should end at the beginning of that academic year. Martin v. Harford County Public Schools, 33-BR-92.

Section 8-909(b)(i) does not apply to any claims for benefits which the claimant filed for weeks prior to and subsequent to the summer vacation period. Weissenberg v. Montgomery County Public Schools, 2151-BR-92.

C. Applicability of Section 8-909(c)
The claimant substitute custodian, who could have worked 12 months per year, was separated from employment in July (after the end of the academic year) when he was "bumped" by a more senior permanent custodian, and recalled prior to the beginning of the academic year. The claimant's period of unemployment has no relationship to the period between two successive academic years as contemplated under Section 8-909(c). Rather, the claimant was laid off when he was bumped by a more senior employee, with the possibility of recall. There is no disqualification under Section 8-909(c). Ritchie v. Allegany County Board of Education, 205-BR-85.

The claimant was an office worker at Towson State University. On May 2, 1986, he signed a contract to return to work on August 25, 1986, and in fact did return to work with Towson State University (although he later resigned in December, 1986). The claimant admitted that he signed the contract and his explanation of why he still felt he did not have reasonable assurance of returning in the fall was not credible. The claimant had reasonable assurance of a job within the meaning of Section 8-909(c). Wagner v. Towson State University, 725-BR-88.

The claimant was employed as a crossing guard for the City of Annapolis Police Department for over four years. Each year she worked when school was in session and she was off during the summer. Her last day of work for the 1989-90 school year was June 13, 1990. The claimant was given reasonable assurance that she would be returning to her job in September at the start of the new school year, and in fact she did so. The work that the claimant performed under the employ of the City of Annapolis Police Department was on behalf of an educational institution, the City of Annapolis school system. Therefore, a disqualification under Section 8-909(c) was applicable. Wingate v. City of Annapolis, 14-BH-91.

The claimant was employed by Baltimore City as a "hall monitor" and was clearly not employed in an instructional, research or principal administrative capacity. The Board held that Section 8-909(c) was applicable. There was no evidence that the claimant's name and social security number were included on a list provided to the Department of Labor, Licensing and Regulation for all employees performing covered employment who have "reasonable assurance". Additionally, the claimant did not receive direct notification of reasonable assurance of employment for the ensuing school year. The Board therefore found that the claimant was not given reasonable assurance. White v. Sundry Educational Service, 3251-BR-97.

D. Educational Institution and Educational Service Agency Under Section 8-909
A private, nonprofit corporation that leases space from schools and conducts day-care programs there before and after hours, is not an "educational institution" within the meaning of Section 8-909. Pinkney v. Play Keepers, Inc., 419-BH-92.

The claimant was employed by the Community Action Council (CAC) as a teacher for the Head Start Program. Head Start is primarily a social service program for low-income families and children. Section 8-101(l) defines an educational institution as that in which: (1) participants, trainees, or students are offered an organized course of study or training; and (2) the courses of study or training are academic, technical, trade-oriented or preparatory for gainful employment in a recognized occupation. Neither the CAC nor the Head Start Program is an educational institution within this definition. An educational service agency is defined in Section 8-909(e) as a governmental entity that is established and operated exclusively to provide educational service to one or more educational institutions. Neither the CAC nor the Head Start Program meets this definition. The claimant was not performing services for or on behalf of an educational institution or educational service agency. Myers v. Community Action Council, 1104-BR-90.

The claimant was employed as a full-time custodian from October 1992 through June 30, 2011. The claimant was discharged when her employment contract ended. The claimant was not discharged because of any act of misconduct. The claimant was employed by the employer’s Head Start program. This program is not an educational program. The employer’s Head Start program is primarily a social service for low-income families and children. The claimant was not performing services for the educational institution, Morgan State University. The Board found there was insufficient evidence that the claimant was performing services for an educational institution and that Section 8-909 does not bar the claimant from receipt of benefits. Kennedy v. Morgan State University, 2985-BH-12.

II. Reasonable Assurance

A. In General
Although reasonable assurance is something less than a guarantee, it must be based on something more than merely being on a list. Therefore, where a part-time adult education instructor was given no indication, either verbally or in writing, of her chances for rehire prior to the third week in August, she had no reasonable assurance within the meaning of Section 8-909(b). Since the claimant's re-employment depends on student enrollment and finances (neither of which were predictable or controllable by the employer), the claimant's work history alone would not support a finding of reasonable assurance. Comninos v. Baltimore City Schools, 264-BH-83.

The performance of service in the successive academic term need not be of the exact same nature as the service previously performed. As long as the reasonable assurance is for service "in an instructional, research or principal administrative capacity," the requirement of Section 8-909(b) is fulfilled. Englemeyer v. Anne Arundel County Public Schools, 946-BR-89.

The claimant taught school for about 14 years, apparently on a provisional certificate. On May 27, 1988, she was notified that she was terminated. On June 17, 1988, she was notified that she could be rehired if she completed a list of tasks. Rehiring was contingent upon an evaluation of her credentials and an interview scheduled for July 5, 1988. The claimant was subsequently employed as a teacher in the fall, 1988 school semester. However, the claimant did not have reasonable assurance of returning to work prior to July 5, 1988, the day of her interview. As of July 5, 1988, the claimant had reasonable assurance. McCleary v. Baltimore School Teachers, 1043-BR-88.

The claimant was sent a letter at the end of the 1986-87 school year stating that his contract could not be renewed because his teaching certificate had expired. On July 6, 1987, the claimant wrote a letter to the employer asking for reconsideration of that decision. In a letter dated July 16, 1987, the employer responded to the claimant's letter by stating that the claimant's request to be reinstated had been approved. The claimant returned to his teaching duties with the employer beginning in September, 1987 and extending into the 1987-88 school year. The claimant was given reasonable assurance of returning to work for the employer by the letter dated July 16, 1987. Wiggins v. Baltimore School Teachers, 171-BH-89.

The claimant worked as a tutor during the 1990-91 school year. At the end of the school year, the claimant's principal had no idea whether or not the claimant's position would be available in the fall of 1991. The claimant never received any information regarding the status of her job until the beginning of August, at which time she was told that her job was again available to her for the upcoming academic year. There is no evidence that the claimant had any assurance at all of any work in the 1991-92 academic year or that she had a contract for that school year. The claimant did not have reasonable assurance pursuant to Section 8-909(b). Wenner v. Frederick County Board of Education, 1284-BR-91.

Where the claimant was not only on a "reasonable assurance" list, but also worked 170 out of the 180 school days in the previous year, 80% for this employer, the claimant had reasonable assurance. Twigg v. Mineral County Board of Education, 42-BR-93.

Despite an employment agreement which contained a clause that the agreement is void in the absence of funding, the claimant had reasonable assurance of working in an instructional capacity. Official and judicial notice is taken that all governmental positions are subject to funding. Salmon v. Department of Health, 3025-BR-04.

It was not the claimant’s burden to prove that she would NOT return to work for the fall semester. It was the employer’s burden to demonstrate that it sufficiently provided the claimant reasonable assurance that she would return to perform the same or similar work for the fall semester. The employer did not provide the claimant with reasonable assurance, either in writing or orally, that she would return to work for the next academic semester. The Board found that the employer failed to meet this burden in this case. Lesesne v. Baltimore City Community College, 159-BR-11.

The claimant was employed as an adjunct professor at Anne Arundel Community College. The last day of the summer session was June 27, 2012. The next successive semester began on August 28, 2012. As of the last day of the academic semester on June 27, 2012, the claimant did not have reasonable assurance of returning in the same or a similar capacity in the next successive semester. When the claimant completed teaching the summer classes, he did not know if or when he would be returning to teach another class. On August 6, 2012, the claimant received a letter establishing reasonable assurance of returning for the next successive term. The Board held that the claimant did not have reasonable assurance for returning to the same or similar employment from the week beginning July 1, 2012 through the week ending August 4, 2012. The Board further held that the claimant had reasonable assurance and is disqualified from receiving unemployment benefits from August 15, 2012 through August 25, 2012. Keicher v. Anne Arundel Community College, 5193-BR-12.

The claimant was last employed on May 16, 2013 as a part-time, adjunct faculty member in an instructional position with an educational institution. The claimant received no prior correspondence from the employer which provided him a reasonable assurance of returning to work during the summer session from May 12, 2013 through August 12, 2013. The claimant’s first summer session was canceled because of lack of enrollment. Subsequently, the claimant’s second summer session was canceled. The Board took official notice of the employer’s statement in the Agency Fact Finding Report. The employer stated, “Whenever we have the need for this class then he is contacted.” This was consistent with the claimant’s testimony. There was no evidence that the claimant was provided reasonable assurance. The nature of his position is that he never knew if he would be scheduled to teach. In order to establish reasonable assurance, the employer needed to communicate with the claimant its intention of scheduling him to teach. The Board held the claimant did not have reasonable assurance. Kerstetter v. Anne Arundel Community College, 4151-BR-13.

Since August 20, 2012, the claimant had been employed as a part-time contractual adjunct professor at Prince George’s Community College. She last worked for the employer on May 15, 2014, corresponding to the last day of the spring semester. The employer offered the claimant a similar teaching schedule for the 2014 fall semester as she had worked during the preceding spring semester. The claimant agreed to this. Both parties understood that this offer was contingent upon sufficient enrollment in the claimant’s assigned classes to warrant the employer actually having the claimant teach those classes. This was the same circumstances and understanding as between the parties in the prior year. The Board held that the claimant had reasonable assurance of working in the same or similar capacity in the second of two academic semesters. The concept of reasonable assurance does not require a guarantee of employment. It requires the parties’ understanding be that the employment relationship will resume on essentially the same basis as before, after the end of a regular break between academic terms. Here the claimant’s return was contingent on sufficient enrollment. That would nearly always be true of nearly every instructional position in nearly every educational institution. Reasonable assurance is not a contract and is not binding on either party. If something occurs which causes the claimant to not be able to return at the end of the break between terms, the reasonable assurance dissolves and the claimant could then be eligible for benefits for that period between terms. Taylor v. Board of Trustees Prince George’s Community College, 113-BR-15.

Since August 24, 2012, the claimant has been employed full time as a school bus driver. Her last day worked at the close of the 2013-2014 academic year was June 16, 2014. The claimant also worked part-time as a school bus driver during the 2014 summer session, from July 7, 2014 to August 1, 2014. At the conclusion of the spring 2014 semester, the employer provided the claimant with a letter stating that the employer anticipated utilizing her services in the upcoming 2014-2015 academic year. The employer also provided the claimant with a form which asked the claimant whether she intended to return to work and keep the same bus route. The claimant indicated that she intended to return. The expected return-to-work date is August 21, 2014 and the school year starts on August 27, 2014. The Board held that the claimant had reasonable assurance of working in the same or similar capacity in the second of two academic semesters. Reasonable assurance is not a contract and is not binding on either party. It is an agreement and understanding that the employer will have a position available of a similar nature to the claimant’s most recent position, and that the claimant intends to return to the position. Neither party is bound by this. If something occurs which causes the claimant to not be able to return at the end of the break between terms, the reasonable assurance dissolves and the claimant could then be eligible for benefits for that period between terms. Benefits are denied from June 15, 2014 through August 23, 2014. Murray v. Board of Education of Baltimore County, 564-BR-15, 558-BR-15.

B. Abolishment of Position or Termination
Where the claimant received a letter from the school principal at the end of the academic year informing him that his employment would not resume in the following year, the claimant had no reasonable assurance within the meaning of Section 8-909(b). Beech v. Baltimore City, 171-BR-83.

The claimant substitute custodian had no reasonable assurance within the meaning of Section 8-909(c) where he was "bumped" by a senior permanent employee, with the possibility of recall at some later unspecified date. Ritchie v. Allegany County Board of Education, 205-BR-85.

At the beginning of the summer vacation, the claimant received a letter which permanently terminated her employment. During the summer, she received various invitations to apply for other jobs. Although she was qualified for these jobs, the invitations required her to undergo redundant extensive coursework and testing in order to be eligible to apply for the new positions. The claimant was later sent additional letters reinstating her conditionally, but with inappropriate conditions attached. She was later sent a letter offering her a job for which she was not qualified. This offer was withdrawn on August 31. On that date, she was finally, unconditionally offered a job for which she was qualified. No serious person could argue that this succession of erroneous, incorrect and inappropriate letters constitutes reasonable assurance of returning to work. The claimant had no reasonable assurance until the day she actually began teaching again. Cook v. Baltimore School Teachers, 385-BR-89.

It is undisputed that the claimant was employed by an educational institution, had unemployment that occurred between successive academic terms or years and was employed in a capacity covered under Section 8-909. The claimant was an adjunct instructor. Due to the nature of the claimant’s contract with the employer, there is no reasonable assurance that the claimant will receive a contract to teach courses for this employer during the next academic year or term. The claimant’s contract specifically states that the appointment does not extend beyond the period set forth in the contract and the contract does not establish any priority for future appointments. Furthermore, the contract states that the college may terminate the contract immediately and without further obligation to the adjunct faculty member if the course(s) are canceled due to insufficient enrollment or if changes in the college’s schedule make it appropriate for a full-time faculty member to be assigned the course(s) as part of his/her total load. Especially in these economic times, enrollment at higher education facilities fluctuates due to the changing finances of the individual, the family and the academic institution. The claimant did not have reasonable assurance. Dearing v. Community Colleges of Baltimore County, 5705-BR-12.

C. Leave of Absence
Under Section 8-909(b), a claimant may not be paid benefits based upon his teaching service where the claimant voluntarily takes a leave of absence (to further his education) between two nonsuccessive academic terms, and has reasonable assurance of returning to work in the following academic year. London v. Baltimore City Schools, 215-BR-82.

During the summer recess after the expiration of the claimant's leave of absence, there was a contract or reasonable assurance within the meaning of Section 8-909(b), that the claimant would perform services as a teacher at the start of the following academic year. While a leave of absence does not promise that a claimant would be re-employed after the leave, such a promise is to be fairly implied. Muller v. Board of Education, 144-BH-83.

D. Substitute Teachers
The most important indications of whether a substitute teacher has a reasonable expectation of performing services are the history of the employment relationship and the stated intentions of the parties. An employment history showing a relatively stable utilization of the claimant's services during one academic year will tend to show that a claimant does have reasonable assurance; conversely, a history showing scarcely any past employment will tend to show that there is no reasonable assurance. Merely placing a teacher's name on a list of eligible substitutes does not establish reasonable assurance. Since the employer presented no other evidence, reasonable assurance has not been shown. No disqualification is imposed under Section 8-909(b) for the period between academic terms which began in June, 1987 and ended in September, 1987. Gilliam v. Board of Education of Baltimore County, 174-BR-88.

The claimant worked as a substitute teacher for the Howard County Public Schools since 1985. In May, 1988, the claimant received a letter from her employer giving her reasonable assurance that she would return to her position as a substitute teacher for the 1988-89 school year. The claimant returned the postcard contained with this letter, indicating her intent to continue as a substitute teacher for the 1988-89 school year. During the 1986-87 school year, the claimant worked 95 days. During the 1987-88 school year, the claimant worked 91 school days. The school year consists of 190 days. The most important indications of whether a substitute teacher has a reasonable expectation of performing services are the history of the employment relationship and the stated intentions of the parties. The claimant's employment history and the statements of the claimant and the employer are sufficient to find that the claimant had reasonable assurance of returning to her employment for the 1988-89 school year. Thompson v. Howard County Board of Education, 497-BR-89.

The claimant was a substitute para-educator, earning $9.00 per hour. She earned $4,000.00 during the 2009-2010 school year. The employer issued the claimant a letter indicating that she had reasonable assurance of returning to work the following school year. The actions of the claimant and employer established intent to continue the employment relationship. The employer did more than place the claimant’s name on a list. The claimant’s employment history was sufficient to support a finding that she had reasonable assurance of returning to work. Hayes v. Board of Education of Baltimore County, 668-BR-11.

The claimant was employed as a substitute teacher since September 1, 2009 and has been reemployed at the beginning of each school year since then. The claimant’s unemployment commenced between two successive academic years. Her last day of work was June 7, 2012. The 2012-2013 school year is scheduled to begin September 4, 2012. The employer did not send the claimant a letter of reasonable assurance, but the claimant did receive the employer’s letter regarding training for the upcoming school year. The claimant plans on returning to the employer to work this upcoming school year and the employer has indicated informally that they plan to have the claimant back. The Board held that the claimant did not have reasonable assurance. The letter that the claimant received was not sufficient to establish reasonable assurance. Providing of reasonable assurance is straightforward. Reasonable assurance, under the law, is not implied or inferred. It must be given clearly and specifically. In this case, the employer did not appear and offer any evidence that it provided the claimant with reasonable assurance of returning in the same or similar capacity, for the next academic term. Pollins v. Accomac Board of Education, 5362-BR-12.

The claimant, a substitute teacher, had not received a letter of reasonable assurance, but had received some information about training. The Board found this was insufficient to establish reasonable assurance. The process of providing reasonable assurance is straightforward. The employer, a school district, certainly should have been capable of providing such assurance to the claimant. There was no evidence such a letter was ever sent to the claimant or that she was otherwise provided with actual reasonable assurance. Reasonable assurance, under the law, is not implied or inferred. It must be given clearly and specifically. In this case, the employer did not appear and offer any evidence that it provided the claimant with reasonable assurance of returning in the same or similar capacity, for the next academic term or semester. Pollins v. University of Maryland Eastern Shore, 180-BR-13.

The claimant was a substitute teacher. On May 31, 2013, the claimant received correspondence from the employer notifying her that there would be positions available to her as a substitute teacher for the upcoming school year. The correspondence directed the claimant to return a confirmation that she had an intention to return to a substitute teacher position for the employer. The claimant received the correspondence but never returned the confirmation. The claimant testified she had no intention of returning to the position for the upcoming academic year. The claimant worked for the employer approximately 100 days out of the 192 days of the academic year. The weight of the credible evidence supports a finding that the claimant was regularly used by the employer as a substitute teacher and the employer intended to continue the claimant’s employment. The separation from this employer was not because the claimant did not have reasonable assurance in returning, but because the claimant had no intention of returning as a substitute teacher. The Board held the claimant had reasonable assurance of returning to the same or similar employment in the next academic year. Brown v. Prince George’s Board of Education, 4516-BR-13.

E. Twelve-Month Employees
The claimant was a 12-month employee working for the Baltimore County school system as a job developer. On June 30, 1989, she was told that her job was being terminated and her future with the employer was unclear. Approximately two weeks prior to her hearing with the hearing examiner, she was offered and accepted a new 10-month position doing vocational support work. The claimant's situation is not the same case as unemployment during a period between two successive terms or during an established or customary vacation period. The claimant did not have reasonable assurance of work within the meaning of Section 8-909(c). Geary v. Board of Education of Baltimore County, 876-BR-89.

The claimants worked for the Allegany County Board of Education as substitute custodians and cleaners. They would fill in for regular custodians when they were sick or on vacation. Their last day of work prior to the summer of 1990 was June 6, 1990. They were, however, available and subject to be called to work all summer long. The claimants had been called in during past summers. The claimants signed letters of intent to continue as substitute custodians for the 1990-91 school year. Without these letters, their names would have been removed from the list. The claimants are not disqualified under Section 8-909(c). The claimants' period of unemployment had no relationship to the period between two successive academic years. They are substitute custodians who work sporadically, but on a year-round basis. They were on call 12 months, including the summer. Although they did not work during the summer of 1990, they worked during other summers. Smith and Perdew v. Allegany County Board of Education, 272-BH-91.

The claimant usually worked during the summer months. This was the first summer in four years that she had no work for a substantial period of time. The claimant was temporarily laid off from May 10, 1991 to June 26, 1991 due to a lack of work. The claimant had reasonable assurance of returning to work on June 26, 1991. However, the period of time she was unemployed was a period of a layoff and not during a customary and established holiday recess or vacation period as required by Section 8-909(d). Taweel v. Columbia Union College, 1349-BR-91.

III. Vacation or Holiday Recess
The holiday recess in question here was from December 22, 1986 until January 1, 1987. In order for a claimant to be disqualified under Section 8-909(d), there must be reasonable assurance that the individual will perform the service in the period immediately following the vacation period or holiday recess. Due to a lack of sufficient enrollment, the claimant did not have reasonable assurance of returning until January 29, 1987, almost a month after the holiday recess ended. This is not immediately following the recess and therefore is not reasonable assurance within the meaning of Section 8-909(d). Segall v. Baltimore Community College, 540-BR-87.