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.
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
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.
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.
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
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.
On December 14, 2018, the Fifth District Court of Appeals (Morrow County) upheld Highland Local School District Board of Education’s decision to non-renew two first year bus drivers.
The Union filed a grievance in response to the Board’s notice of intent not to renew the limited contracts of two bus drivers. The grievance claimed there was no showing of “just cause” and proceeded to arbitration based upon the language of the collective bargaining agreement – only a “just cause” provision for discipline and discharge and silent on the issue of the non-renewal of limited non-teaching contracts. The agreement also included a general statement that the contract “supersedes” all applicable state law.
While arbitration hearing dates were being scheduled, the union’s attorneys filed a declaratory judgment action in court that was decided in favor of the Board on the basis that because the contract did not address the issue of non-renewal, state law applies.
The Court of Appeals of Ohio’s Fifth District agreed with the trial court, rejecting the union’s claim that a general statement in the contract that the collective bargaining agreement “supersedes applicable state law” somehow preempted the application of Ohio’s non-renewal statutes. The Court stated that such overrides can only occur “when a provision specifically addresses a matter and evinces a clear intent to override the statutory law relating to that matter.”
As such, since the contract made no specification about the issuance, sequence, renewal, or non-renewal of limited non-teaching contracts, there was no discernible conflict between the labor agreement and the statutes, therefore, “both R.C. 3319.081 and 3319.083 apply in the case.”
What This Decision Means for Your District
This is a strong decision for the proposition that statutory rights can only be superseded by express language in a collective bargaining agreement. This works both ways and districts should take great care in drafting contract proposals that conflict with existing state laws, particularly as they relate to employee rights.
Along those same lines, it is very important that district administration carefully review non-teaching labor agreements relative to the issue of non-renewal given the recent amendments that now extend limited contracts from three years (1, 2, continuing) to seven years (1, 2, 2, 2, continuing). If you have addressed non-renewal in your non-teacher agreement, you will need to verify that you will also be able to take advantage of these additional years before continuing contract status is granted. You should also anticipate proposals from non-teacher unions attempting to restrict the extension of limited contract status.
United Elec. Radio & Machine Workers of Am. v. Highland Local School Dist. Bd. of Edn. 2018 Ohio 5307 (Fifth District Court of Appeals, Morrow County, December 14, 2018).
The Ohio Supreme Court recently determined that a substitute custodian was not a “regular nonteaching school employee,” a designation that would have entitled him to better wages and benefits. The employee, substitute custodian Kurt Singer, demanded that the Fairland Local School District recognize him as a regular nonteaching employee since 2006 and pay him the additional back wages and benefits that he would have been qualified for under that designation.
Ohio law does not define “regular nonteaching school employee.” Under R.C. 3319.081, “regular nonteaching school employees” in local school districts, including hourly and per diem employees, are under a one-year contract for their first year, then a two-year contract for their second and third years. If renewed, a subsequent contract is a continuing contract, which includes other benefits such as paid leave as well as termination only for just cause. Because Singer worked hours and performed job functions similar to contractual custodians, he argued that he met the definition of a regular nonteaching school employee.
From 2006, when Singer was hired as a substitute custodian, to June 2016, every day that Singer worked for the district was recorded as “substituting.” Alleging that he had asked for a contract but was denied, he requested benefits and back wages to the 2009–2010 school year, which is when he would have received continuing contract benefits if the contract was granted. Singer asked the Supreme Court to compel Fairland Local to recognize him as a regular nonteaching employee and to provide a continuing contract.
The court found that Singer did satisfy the requirements of working full-time and at least 120 days within a school year for the first seven years, but he did not satisfy the requirement of being a “regular” employee. In the absence of a statutory definition of “regular,” the court turned to Black’s Law Dictionary to find the definition “steady or uniform in course, practice, or occurrence; not subject to unexplained or irrational variation.” The court examined Singer’s employment and found that it was not regular in terms of days of service, hours, and school-building assignments. Additionally, Singer worked anywhere from four to ten days in a pay period, and during many pay periods he worked even fewer than four days.
Additional facts leading to the court’s decision include that Singer had no regular location assignment but worked routinely in any of the district’s four buildings – sometimes in more than one building in the same day, and other times in the same building on a daily basis. Furthermore, Singer was able to turn down opportunities to substitute, and at times he did so.
In consideration of these facts, the court issued a 6-1 decision holding that “we cannot conclude that Singer’s employment was in any meaningful way ‘regular.’”
– State ex rel. Singer v. Fairland Local School Dist. Bd. of Edn., Slip Opinion No. 2017-Ohio-8368.