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. 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).
Earlier this year, an Ohio Court of Appeals held that Ohio Revised Code §4111.14(B)(1) [which incorporated the FLSA exemptions into Ohio law] was an unconstitutional attempt by the General Assembly to restrict §34a of the Ohio Constitution and declared it “invalid.” Haight v. Cheap Escape Co., No. 2014-Ohio-2447. This case is currently on appeal at the Ohio Supreme Court at Case No. 2014-1241.
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.
