Determining who is covered and who is exempted by the minimum wage laws sometimes requires a law degree and great patience to dig through ad hoc amendments to statutes and regulations. Ohio Revised Code §4111.14 summarizes §34a in more detail, but still incorporates by broad reference the coverage provisions of the FLSA. Section 203 of the FLSA provides that an “employer” ” includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization“ and an “employee means any individual employed by an employer” with certain exceptions. (For instance, agricultural and domestic workers are generally exempt but the federal Department of Labor has been working to significantly curtail the domestic exemption and had been working to restrict the agricultural exemption as well). Section 206, however, which generally governs the federal minimum wage requirements, provides that employers are only required to pay the minimum wage to employees who are “engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce.” There are additional exceptions to this rule as well (as well as other ad hoc amendments that are beyond the scope of this posting).
Unless an
employer can prove that its enterprise – or a particular employee -- is exempt
from the minimum wage laws, it is prudent to assume that the employer and/or the
employee are covered. In the last quarter of 2012, a Central Ohio
employer found itself liable for $15,996.52 in unpaid minimum wages, $581.40 in
unpaid overtime, and $33,155.84 in damages. Goodman
v. Cleland, 2012-Ohio-5044. The court rejected the employer’s attempt on
appeal to show that it was not subject to the overtime wage provisions. Instead, the court treated the not-an-employer-under-the-statute
argument as an affirmative defense – with the burden of proof on the employer. (This case is a little confusing because the
appellate court discusses at ¶ 23 the trial court’s refusal to consider the
argument in a motion to dismiss because it was not specifically designated as
an affirmative defense in the employer’s answer to the complaint even though
the defendant denied being an employer under the statute. Nonetheless, the appellate court then finds in
the same paragraph that the employer waived the argument by failing to raise it
again at the summary judgment stage).
NOTICE: This summary is designed merely to inform and alert you
of recent legal developments. It does not constitute legal advice and does not
apply to any particular situation because different facts could lead to different
results. Information here can change or be amended without notice. Readers
should not act upon this information without legal advice. If you have any
questions about anything you have read, you should consult with or retain an
employment attorney.
