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 an Ohio law that would qualify him for better wages and benefits, the Ohio Supreme Court ruled.

The Supreme Court ruled 6-1 to deny Fairland Local School District substitute custodian Kurt Singer’s demand that the district where he has worked since 2006 recognize him as a regular nonteaching school employee and pay him additional back wages and benefits. Singer argued that under R.C. 3319.081 he meets the definition of that type of employee because he performed the same tasks and worked similar hours as the full-time custodians.

The majority opinion, written by Justice Judith L. French, stated that Ohio law does not define “regular nonteaching school employee,” so the Court turned to the plain, ordinary meaning of the word “regular.” Because Singer’s schedule varied widely, year to year and pay period to pay period, the Court found he did not meet the definition of a regular employee.

“Considering the entire arc of his employment, we cannot conclude that Singer’s employment was in any meaningful way ‘regular,” the opinion stated.

In a dissenting opinion, Justice William M. O’Neill wrote the district shortchanged Singer by labeling him a “substitute” when he worked similar hours to the “regular” custodians. He asserted that the precedent set by the majority opinion would allow school districts to save money by changing employee work schedules and avoiding offering them contracts.

Custodian Works Without Contract
Fairland hired Singer as a substitute custodian in 2006, and he continues in that position. Fairland’s attendance report lists him as “substituting” every day he worked for the district from September 2006 until June 2016. Though he has never signed a contract with the district, Singer contends he is a “regular nonteaching school employee” under R.C. 3319.081.

R.C. 3319.081 governs employment contracts for certain nonteaching employees and requires newly hired nonteaching employees, including those paid by an hourly rate or by day, to enter into a written contract for a period of no more than one year. If the district rehires the employee after the first contract, the second contract must be for two years. And if the district rehires the employee after the second contract, the district must offer the employee continuing status.

The opinion notes that “continuing” status carries benefits that include generally allowing the person’s employment to be terminated only for cause, and does not permit a reduction in salary unless there is a uniform plan to reduce all nonteaching staff salaries. It also entitles employees to benefits such as vacation leave, paid holidays, sick leave, and personal leave.

Singer Seeks Contract
Singer alleged he had asked for a contract from Fairland for years and was denied. He sought a writ of mandamus from the Supreme Court to compel Fairland to recognize him as a regular nonteaching employee and provide a continuing contract. He asked for back wages and benefits dating to the 2009-2010 school year, arguing he would have received the compensation if he were correctly recognized after three years of district employment.

The Court noted that R.C. 3319.09(B) defines “year” for a school employee to mean at least 120 days of actual service within a school year. Singer exceeded that mark for the first seven years of his service and did meet the law’s definition of “full-time.” However, whether Singer met the definition of full-time or not does not entitle him to continuing status “unless he is also a regular nonteaching employee,” the opinion stated.

R.C. Chapter 3310 does not define “regular nonteaching school employee,” and when terms in the statute are not defined, the Court uses their plain, ordinary meaning. The Court turned to Black’s Law Dictionary where “regular” is defined as “[s]teady or uniform in course, practice, or occurrence; not subject to unexplained or irrational variation,” and Webster’s Third New International Dictionary, which defines “regular” as “usual, customary, normal or general.”

“These definitions do not describe Singer’s employment, which has been irregular with respect to days of service, hours, and school-building assignments,” the opinion stated.

The Court documented that Singer’s days of service varied widely and used his 2006-2007 school year schedule as an example. That year Singer worked as many as 10-days in a two-week pay period, but for the majority of pay periods he worked eight days or fewer. It noted in many pay periods he worked four days or fewer, and the following year his pay periods ranged from four days to 10 days.

Singer also had no regular location assignment, the opinion stated. He would routinely work within the district’s four school buildings, sometimes in more than one building in the same day. The district’s requests for Singer to work also varied, with individuals from different buildings calling him to work, and in some cases he was instructed to report to a work location on a daily basis until further notice. The opinion also noted that Singer was able, and at times, did turn down opportunities to substitute in the district.

“Fairland’s records indicate that Singer was called to these multiple locations for irregular intervals and to substitute for many different employees,” the Court wrote.

The Court concluded that Singer did not establish by clear and convincing evidence that he was entitled to a continuing contract, and the Court denied the writ.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Sharon L. Kennedy, Patrick F. Fischer, and R. Patrick DeWine joined the opinion.

Singer Mislabeled, Dissent Maintains
In his dissent, Justice O’Neill wrote that he would award back pay and benefits to Singer because he performed the same tasks and worked similar hours to “regular” custodians for 10 school years. He maintained the substance of Singer’s work was as a regular custodian, and it was clear that he had worked more days per year for the first seven years he was employed than many of the district’s full-time custodians.

Justice O’Neill stated there is no requirement in the law that the hours must be spread evenly throughout the days worked or that all the work be performed at the same facility. He stated the key fact is that all of the work was performed for the same employer.

“Moreover, the purpose of the legislation at issue is to ensure that nonteaching workers employed by a school district are treated fairly and have some degree of job security,” he wrote.

If districts change nonteaching employees’ work sites and hours periodically, they can deny the employees “regular” status, which would allow the schools to pay lower wages and avoid paying benefits, he stated.

“Surely that was not the intention of the state legislature,” he concluded.

2015-1517. State ex rel. Singer v. Fairland Local School Dist. Bd. of Edn., Slip Opinion No. 2017-Ohio-8368.

View oral argument video of this case.

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