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Nonteaching Employees Who Work Irregular Days, Hours, and Assignments Are Not Entitled To Continuing Contracts

In a significant case involving the continuing contract status of nonteaching employees under R.C. 3319.081, the Ohio Supreme Court ruled that a substitute custodian whose schedule is irregular with respect to days of service, hours worked, and school-building assignment is not considered a “regular nonteaching school employee” under Ohio law and, as result, is not eligible for a continuing contract under R.C. 3319.081.

In State ex rel. Singer v. Fairland Local School Dist. Bd. of Edn., Slip Opinion No. 2017-Ohio-8368, a substitute custodian worked for a school district since 2006 without a written contract of employment.  “Throughout his employment, [his] days of service [* * *] varied widely.” Singer at ¶ 16. “Just as he had no regular schedule, [the custodian] had no regular location to which he was assigned.” Singer at ¶ 17. School district “records indicate that [the custodian] was called to these multiple locations for irregular intervals and to substitute for many different employees.” Singer at ¶ 18. “Finally, the manner in which [the school district] requested [the] work varied.” Singer at ¶ 19.

The custodian filed a lawsuit seeking to compel the school board to recognize him as a regular nonteaching employee with a continuing contract under R.C. 3319.081 and to “to make him whole for the back wages and benefits he would have received had he been timely recognized as a regular nonteaching employee.”Singer at ¶ 6.

“R.C. 3319.081 governs employment contracts for certain nonteaching school-district employees.” Singer at ¶ 3. The statute provides that “a qualifying employee who is employed more than three years achieves continuing status.” Singer at ¶ 3. However, R.C. 3319.081 only applies to “regular” nonteaching employees. As a result, a nonteaching employee “is not entitled to continuing status [regardless of whether he is employed for more than three years] unless he is also a regular nonteaching employee.” Singer at ¶ 14.

The primary issue in this case surrounds the fact that R.C. 3319.081 does not define what the term “regular nonteaching employee” means. The Ohio Supreme Court concluded that the term “regular” should be given its plain and ordinary meaning, which suggests steady or uniform service. Accordingly, a nonteaching employee does not qualify as a “regular” employee for purposes of continuing contract status unless that employee provides regular service with respect to “days of service, hours, and school-building assignments.” Singer at ¶ 15.

But there was a dissenting opinion. And, as the dissenting opinion points out, this decision could have a profound impact on the employment of nonteaching employees. “[S]chool districts could save money by refusing to offer contracts to employees and then changing the employees’ work sites from facility to facility on a daily or weekly basis and changing their hours periodically. If that were done, the employees could be denied ‘regular’ status, with the result that the school districts could pay lower wages and avoid having to provide benefits or leave time.” Singer at ¶ 24.

To read this case, please click here.

Authors: Matthew John Markling and Patrick Vrobel

Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.

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