64 Ohio St. 2d 273 | Ohio | 1980
Lead Opinion
Appellant raises four propositions of law, all of which essentially challenge the issuance of a writ of mandamus as a means to resolve the instant cause.
We do not agree. R. C. 121.161, which governs computation of vacation leave for state employees, provides in pertinent part:
“Each full-time state employee, including full-time hourly-rate employees, after service of one year with the state, or any political subdivision of the state, shall have earned and will be due upon the attainment of the first year of employment and annually thereafter, eighty hours of vacation leave with full pay. One year of service shall be computed on the basis of twenty-six biweekly pay periods. * * * Such vacation leave shall accrue to the employee at the rate of three and one-tenths hours each bi-weekly period for those entitled to eighty hours per year***.
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“ * * *ln case of transfer of an employee from one state agency to another* * *the employee shall be compensated at his current rate of pay for accrued and unused vacation leave at the time of transfer by the releasing agency.***” (Emphasis added.)
Thus, vacation leave is to be credited to each “full-time state employee, including full-time hourly-rate employees.” The Revised Code contains no exact definition of these terms. R. C. 124.18 provides, however, that “[f]orty hours shall be
“ ‘Full-Time Employee’ - An employee whose regular hours of duty total forty hours a week in a state agency, or any standard accepted as full-time in a county agency.”
In contrast, Ohio Adm. Code 123:1-47-01(A)(33) defines a part-time employee as:
“An employee whose regular hours of duty are less than forty hours a week in a state agency, or less than any accepted full-time standard in a county agency.”
In the instant cause, payroll records demonstrate that, with few exceptions, appellee worked a full 40-hour week, from the time of her initial employment until her transfer. Appellant contends that appellee is conclusively established to be an “intermittent” employee
Appellant’s contention, that mandamus is not a proper remedy because appellee has an adequate remedy at law by way of the Court of Claims, is also without merit. Mandamus
Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
Appellee raises in her brief the failure of the appellate court to rule on her prayer for attorney fees. However, no notice of cross-appeal was filed and this issue is thus not properly before this court.
The Revised Code does not define the term “intermittent” employee, although it does make reference to such employees. See, e.g., R. C. 124.15(F) and 124.32(C). The term is defined in Ohio Adm. Code 123:1-47-01 (A)(24) as “[a]n employee who works on an irregular schedule which is determined by the fluctuating demands of the work and is not predictable and whose hours generally are less than 1000 hours per year.” It is beyond dispute that appellee’s employment was not in line with this definition.
Dissenting Opinion
concurring. The state, of course, should not be permitted to deny an employee vacation pay merely by ordaining, contrary to fact, that such employee is not “full-time.” Such a rule would be both unfair and subject to abuse.
I am not sure, however, that the statute permits us to reach an efficacious result. In order to circumvent our decision, a state agency need only hire a greater number of intermittent workers for fewer hours each. This hiring strategy will assure that no particular intermittent worker will meet our test for full-time status, viz., whether “as a routine***[such
If the state agencies do respond in this way, the result of our decision will simply be an increase in paperwork, a reduction in on-the-job productivity and a reduction in the size of the individual intermittent worker’s paycheck. Indeed, the only employees who will benefit from our decision may be relator and other present intermittent workers who met our above test before the state agencies had an opportunity to alter their hiring strategies.
The General Assembly should examine this issue and draft rules which will permit the state both to respond to its fluctuating labor requirements on a cost-effective basis and to protect the legitimate expectations of its employees.
Celebrezze, C. J., concurs in the foregoing concurring opinion.