UPDATE – Legislators Grapple with EdChoice Program Expansion Amendments

by | Feb 3, 2020 | General, Legislation, School Finance, School Management

Efforts to curb the impact of EdChoice accelerated towards the end of January as legislators in the Senate and House searched for ways to reduce the negative financial impact that the program is anticipated to have on Ohio’s public schools starting next year. Legislators and the governor approved language in last year’s budget bill which was designed to dramatically increase the number of students eligible for the scholarships by more than doubling the number of eligible buildings. Prior to the program expansion, EdChoice was available in 31 school districts and 255 schools. After the expansion, EdChoice eligibility would have extended to at least 426 school districts and 1,227 schools. 

Lobbying efforts and contacts from districts to their legislators and to House and Senate committee members to reduce the impact of the changes resulted in the last-minute action to delay implementation of the changes. The 2020-2021 application window for EdChoice would have opened on February 1st, of this year; now, the program application is delayed to April 1st.  The House and Senate are expected to review the EdChoice program expansion in the next two months and hopefully will develop amendments to the budget expansion which will better support Ohio’s public school system.

The House initially proposed changes to EdChoice through HB 9. With a deadline of February 1st (the start of the applications of EdChoice scholarships) looming, the Senate passed alternative language late in the evening on January 29th. The Senate’s plan would have reduced the number of school buildings eligible under the traditional EdChoice program, but would also have increased the number of families eligible for the EdChoice expansion program by changing eligibility from 200% to 300% of the federal poverty guidelines for the income-based vouchers. 

The bill was sent back to the House, which rejected the changes, and a conference committee convened. The House elected instead to pass House Bill 120, including language delaying the EdChoice application window until April 1st. HB 120 also contained separate provisions that authorize the auditor’s office to conduct performance audits of all state institutions of higher education and also modified requirements for College Credit Plus informational sessions. The bill included an appropriation of $10 million to help fund the EdChoice program. The Senate passed HB 120 on January 31st and the governor signed the bill the same day. The bill is considered an emergency measure and is effective immediately. This move buys the legislature more time to develop a plan that both houses are willing to pass.

February 3rd, 2020 Update: A group of families and private schools filed a lawsuit in the Ohio Supreme Court challenging House Bill 120 changes to EdChoice. The lawsuit alleges that the legislature failed to properly execute an emergency measure and therefore HB 120 should not go into effect for 90 days. The parties also claim that the HB 120 application delay will cause irreparable harm to new EdChoice eligible students who planned to apply for the scholarship. If successful, the state may be forced to accept applications starting February 1st.

We will keep you posted on developments. The education associations have sent out multiple calls of action on the bills and you are encouraged to continue to stay apprised of developments and let your legislators know how the expansion would affect your district. 

Unemployment Claims and “Independent Contractors”

by | Feb 3, 2020 | General, Labor and Employment, Unemployment, Workers’ Compensation

Generally, employees in Ohio are eligible to receive unemployment benefits if they are laid off from their place of employment. However, under Ohio law, if you are an “independent contractor,” you are precluded from receiving those benefits. The Eleventh District Court of Appeals recently held that a truck driver was an independent contractor as opposed to an employee and therefore, was not entitled to unemployment compensation.

In Marcus Roach Express, L.L.C. v. Dir., Ohio Dept. of Job & Family Serv., 2019-Ohio-5414, a truck driver claimed that he was an employee and entitled to receive unemployment benefits. The Ohio Department of Job & Family Services (“ODJFS”) initially issued a determination allowing him to receive benefits, which the employer appealed to the court.

At issue in the appeal was whether the truck driver was really an independent contractor, rather than an “employee” separated from his job due to a lack of work. In making the determination of employee versus independent contractor, the Unemployment Review Commission will generally look to the list of twenty factors outlined in Ohio Adm. Code 4141-3-05(B). Though these factors may be used by the Commission, they are not necessarily determinative of whether the individual was or was not “subject to direction and control” over their services — the primary metric in the analysis of deciding independent contractor status.

In this case, the truck driver’s agreement actually stated that he was an independent contractor and not an employee of the company. Though this fact supports a finding that he was an independent contractor, the court looked to the totality of the circumstances in order to determine whether the employer actually had the right to control the driver’s work. 

ODJFS argued that “control” existed because the employer paid the driver weekly, approved his time-off requests, owned the delivery truck and paid for its repairs, required him to turn in logbooks, and continued a working relationship with the individual for eight years.

The court, however, noted that the driver was paid based on how many loads he accepted as opposed to the number of hours he worked. Additionally, the claimant was able to decide which routes he wanted and was able to set his own schedule, all of which led the court to conclude that the company did not exercise nor retain a right to control the individual’s work. Therefore, the driver was considered to be an independent contractor and was not eligible to receive unemployment benefits.

This case should remind us that in the service-oriented nature of public education, there are limited opportunities to truly employ “independent contractors” for daily operations of districts.  In teaching, feeding, counseling, transporting, and operating buildings, districts maintain control of personnel in the delivery of those services — and for good reason. The factors for establishing a true independent contractor are important to know, particularly when attempting to defeat a claim for unemployment.  While this case is instructive, should you want to question a request for unemployment compensation on this basis, it is advisable to contact an Ennis Britton attorney to review your realistic options.