cases “involving a dispute over the number of hours of leave due might not be appropriately decided by an action in mandamus”
How later courts described this case
- cases “involving a dispute over the number of hours of leave due might not be appropriately decided by an action in mandamus”
Written by the judges who cited it.
The opinion
William B. Brown, J.,
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 *277 intermittent worker] worked 40 hours per week and has demonstrated***an unbroken pattern of full-employment.”
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.