Making Employment Agreements for Success

Academic employment is often anchored by written agreements such as contracts. But employment in higher education today is increasingly tenuous and challenging, with growing numbers of closures, consolidations and layoffs of even tenured professors. Thus, it is more important than ever that faculty members be thoughtful when considering employment arrangements and agreements with their colleges and universities—and that they understand the functions and limits of academic contracts.

If you are a faculty member, let’s start with some general things that you should keep in mind.

First, an academic employment contract is a feature of an employment arrangement. As a faculty member, it is important to identify what is in a contract and what is not. For example, an annual appointment letter might or might not be a contract, and it might or might not incorporate, directly or by implication, critical documents such as bylaws, faculty handbooks and the like.

Indeed, many faculty members are surprised to learn that a number of arrangements and expectations are not governed by contract. They often learn the most about what their contract consists of—and does not consist of—only when there is controversy, which may be the most challenging moment in any employment arrangement with an institution. For instance, professors can find themselves involved in a grievance process regarding an issue of alleged discrimination but only gain a clear idea of the policies and procedures—and rights—that apply at the time of that process. Thus, you should know early on which of your employee arrangements will be articulated in a contract, an appointment letter or otherwise.

Second, employment arrangements and contracts vary from sector to sector, state to state and situation to situation. There are no national- or industry-standard faculty employment contracts. Professors who move to other institutions often encounter different employment arrangements and different contract language. For instance, public colleges and universities typically approach contracts differently than private ones. Contractual rights and articulations differ in institutions with collective bargaining. And, of course, tenure and tenure-track faculty members have different arrangements than contingent faculty members.

Third, academic employment contracts are not typically regarded as contracts of “adhesion”—in which one party dictates terms and conditions to another with no bargaining power to change terms. (Think of standard insurance policies.) Academic employment is not a take-it-or-leave-it arrangement. Newly hired professors can sometimes negotiate salary, rank and benefits—in some instances essentially receiving credit for prior academic employment elsewhere. That said, however, do not overestimate the power of faculty members to bargain for terms in a contract. Often the appointment letter or contract that you receive as a professor will be the one offered, with no implication that you have an opportunity to make a counteroffer or significantly modify it.

Moreover, one feature of academic employment—born from notions of shared governance—is that faculty policies or bylaws adopted by colleagues may substantially govern your arrangement with an institution. Your faculty peers often operate to some extent as the employer or agent of the employer. Desire better terms for leaves and sabbaticals? Realistically, the only avenue for many faculty members is to change these arrangements via a collective faculty process.

Fourth, contracts provide some level of job security and protection. But an individual contract dispute can be a costly experience, particularly if you need to secure counsel to contest it. Business, social and political forces can also put pressure on faculty members’ institutional arrangements. Thus, it’s vital that you develop leverage, not just solid contractual relations, with your institution. For instance, if you think your department might be cut for budgetary reasons, you should protect yourself by having marketable skills that you can apply elsewhere. Academic employment today is in a dynamic, even volatile, state, so professors need to think differently about constructing careers and not place ultimate faith in contracts.

At the same time, you should consider some specific issues during your appointment and contract time.

Intellectual property. More than ever, you should clarify who can make claim to any intellectual property you create during your academic employment. Institutions ask many professors, for example, to create online or distance education materials and courses—often under separate contracts. Those contracts will specifically outline your IP rights and, in some instances, rights of first refusal to teach a class.

Artificial intelligence. AI raises intellectual property issues that faculty members should discuss with their institution as part of their appointment and contract negotiations. You should also make sure to clarify expectations about the use of AI for instructional, service and scholarship purposes. And you should elucidate any student privacy issues in the use of AI—no one wants to violate FERPA in deploying AI tools.

Some critical questions to ask include:

• Will I be expected to create and manage AI tools such as AI teaching assistants or grading?
• What is appropriate use of AI in creating and evaluating scholarship?
• Can AI tools be used to deliver faculty service obligations—such as developing reports involving peers?

The tricky issue is whether to address AI concerns via contract or other arrangements, such as separate policies, or both.

Support. Modern professorial work requires support. For instance, professors may need assistance in creating and delivering online courses or research assistants for special projects such as books. While it is common for faculty contracts to recite one’s status—for example, “You will hold the rank of associate professor”—it is much less common than perhaps it should be to delineate what reasonable support you can expect in your academic employment. With budgetary and other financial cuts looming, and with teaching assistants increasingly gaining more employment rights, it is more important than ever that you arrange for reasonable support in and outside the classroom.

Workload. Academic employment is perhaps as demanding as it has ever been. Burnout and overload are serious issues for faculty members, who now commonly operate on 24-7 schedules. Some of the most serious academic employment issues arise from poorly thought-out or inadequately articulated expectations regarding workload.

For instance, if budget cuts cause reduction in academic staff, how will reallocation of workload be addressed? Historically, general policies, bylaws and academic departmental leadership set many of those expectations. But times have changed—noticeably since the pandemic—and new approaches to arrangements regarding workloads may be needed. The pandemic placed exceptional pressures on faculty members to perform beyond prior work-life boundaries.

Setting reasonable and achievable expectations for performance in the post-pandemic workplace, including remote work arrangements, is a priority. You should be engaged actively in discussions with the institution regarding work-life balance and performance metrics or goals. Do not assume that senior administration understands day-in-the-life challenges for professors unless you articulate them to administration.

Financial and political exigencies. The potential for major financial and political challenges to employment arrangements has never been more pronounced. Traditionally, academic employees were covered by industry traditions that limited major restructuring or employee layoffs to situations of extreme financial exigency. It was also rare for social and political forces to react to academic conduct and expression as is common today—academic freedom was once very protective. Today, however, it is far more common to see negative academic employment decisions, program closures, redefinitions of job positions and the like for less dire financial reasons or for political ones.

Faculty members must be prepared for worst-case scenarios when it comes to significant alterations in programs and expectations. Academic employment evolved in a long period of industry growth and strong social approval. Faculty contracts and appointment letters must now reflect the opposite. It’s particularly important not to fall into an outdated “family” approach in constructing and accepting employment arrangements. Higher education is a business and will operate like one when under stress or conflict.

Hybrid appointments. Many faculty members also have administrative appointments, often articulated in separate agreements. One specific issue that merits attention relates to speech and expression. For many faculty members, the law and campus culture broadly protect academic speech and expression. However, the law often allows institutional restriction of administrative speech and expression—even permitting abrupt termination related to unauthorized communication.

Therefore, institutions must clarify what happens when such a hybrid faculty member speaks out. And as a faculty member, you will want to define the arrangements with your institution in order to manage the risks of any possibly controversial communications, especially if you are operating in a hybrid capacity. Questions you will want to ask include:

• What procedural protections, if any, are in place in case of an employment dispute?
• Can I possibly face dismissal from all appointments? Or just administrative?
• Where are the boundaries for speech and expression, if any? (My own private social media? Off-campus communications?)

Expressive and religious freedoms. Similar issues arise even for nonhybrid employees, as many institutions rely on statements and policies relating to expressive rights in lieu of specific contractual arrangements with each employee. Modern laws of free expression—and campus policies themselves—often create responsibilities as well as rights, and professors should be made clearly aware of them, such as student rights in the classroom. Moreover, the law is now even more protective of individual employees’ religious liberties. Appointment and contract times offer an opportunity to discuss and potentially formalize a professor’s individual religious accommodations.

Special duties. In many instances, a professor has special duties, such as being a mandatory reporter under Title IX. Institutions should carefully articulate those duties in appointment and contract documents, and professors should ask and receive confirmation as to which ones they are expected to perform. That would include any special duties created if a professor has been subject to employment discipline for prior transgressions.

To sum up, academic employment is more complex and challenging than ever. The higher education industry is under stress from many directions, making such employment less predictable and secure than in past generations. More than ever, you should carefully consider your arrangements and agreements with your institution—in particular the language in faculty contracts and especially when it comes to topics like AI that have rarely been addressed in the past.