[Cite as DeLong v. Thompson, 2018-Ohio-770.]


                                     COURT OF APPEALS
                                  FAIRFIELD COUNTY, OHIO
                                 FIFTH APPELLATE DISTRICT


                                                  JUDGES:
JACOB DeLONG                                      Hon. John W. Wise, P. J.
                                                  Hon. William B. Hoffman, J.
        Plaintiff-Appellant                       Hon. Craig R. Baldwin, J.

-vs-
                                                  Case No. 17 CA 21
MATT THOMPSON, et al.

        Defendants-Appellees                      OPINION




CHARACTER OF PROCEEDING:                       Civil Appeal from the Court of Common
                                               Pleas, Case No. 15 CV 816


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        March 1, 2018



APPEARANCES:

For Plaintiff-Appellant                        For Defendant-Appellees

PATRICK KASSON                                 D. JOE GRIFFITH
JACKIE JEWELL                                  DAGGER, JOHNSTON, MILLER
REMINGER CO., LPA                              OGILVIE & HAMPSON, LLP
200 Civic Center Drive, Suite 800              144 East Main Street, P. O. Box 667
Columbus, Ohio 43215                           Lancaster, Ohio 43130
Fairfield County, Case No. 17 CA 21                                                     2

Wise, P. J.

      {¶1}    Appellant Jacob DeLong appeals from the decision of the Court of Common

Pleas, Fairfield County, ruling in favor of Appellees Matt Thompson and Fence Solutions,

Inc. following a bench trial.

                           STATEMENT OF THE FACTS AND CASE

      {¶2}    The relevant facts are as follows:

      {¶3}    On December 30, 2015, Appellant Jacob Delong filed a Complaint in the

Fairfield County Court of Common Pleas against Matt Thompson and Fence Solutions,

Inc. alleging claims of Worker’s Compensation Retaliation, Disability Discrimination,

Violation of the Ohio Prompt Payment Act, and Failure to pay overtime wages under the

Ohio Minimum Fair Wage Standards Act. Appellant also made a claim for punitive

damages.

      {¶4}    By Opinion and Entry filed March 7, 2017, Appellant’s causes of action for

Disability Discrimination and punitive damages were dismissed pursuant to summary

judgment.

      {¶5}    On March 28, 2017, a bench trial commenced in this matter on the

remaining causes of action. At trial, the court heard testimony from Appellant, Appellee

Matt Thompson and Rob Nixon, an independent contractor who worked with Appellant

for Appellees.

      {¶6}    Based on the testimony and evidence presented at trial, the court found that

while Appellant was an employee of Fence Solutions prior to September, 2015, his status

changed to that of an independent contractor on or around September 14, 2015. The

court further found that Appellant was an independent contractor when his employment
Fairfield County, Case No. 17 CA 21                                              3


was terminated from Fence Solutions. The court made additional findings that while

employed by Fence Solutions, Appellant was paid at least minimum wage and that he

received all overtime pay owed to him. The court found that Appellee Matt Thompson

did not breach any duty owed to Appellant.

      {¶7}   Appellant now appeals, assigning the following errors for review:

                                ASSIGNMENTS OF ERROR

      {¶8}   “I. THE TRIAL COURT ABUSED ITS DISCRETION, AND OTHERWISE

MADE A CLEARLY ERRONEOUS FINDING, BY RULING THAT APPELLANT WAS AN

INDEPENDENT CONTRACTOR AND NOT AN EMPLOYEE WHEN APPELLANT

SATISFIED MOST OF THE BOSTIC FACTORS AND THE INDUSTRIAL COMMISSION

FOUND HE WAS AN EMPLOYEE.

      {¶9}   “II. A FURTHER ASSIGNMENT OF ERROR AND ABUSE OF

DISCRETION WAS COMMITTED WHEN THE TRIAL COURT HELD THERE WAS NO

WORKERS' COMPENSATION RETALIATION DESPITE THE EXISTENCE OF AN

AUDIO RECORDING CORROBORATING THIS CLAIM AND APPELLEE THOMPSON

TESTIFIED IN HIS DEPOSITION AND OPEN COURT THAT APPELLANT WAS FIRED

FOR FILING A WORKERS' COMPENSATION CLAIM.

      {¶10} “III. THE TRIAL COURT FURTHER ERRED AS A MATTER OF LAW AND

ABUSED ITS DISCRETION BY FINDING THAT THE PROMPT PAY ACT WAS NOT

VIOLATED WHEN APPELLANT DID NOT RECEIVE HIS FINAL PAYCHECK UNTIL

FOUR MONTHS AFTER HE RETAINED A LAWYER.

      {¶11} “IV. A FINAL ERROR AND ABUSE OF DISCRETION WAS COMMITTED

WHEN THE TRIAL COURT FOUND THAT THE APPELLANT WAS NOT ENTITLED TO
Fairfield County, Case No. 17 CA 21                                                          4


OVERTIME PAY WHEN APPELLEES FAILED TO PAY HIM FOR OVERTIME HOURS

WORKED ON TWO SEPARATE OCCASIONS AND WERE AWARE OF THE

DISCREPANCY.”

                                                  I.

       {¶12} In his First Assignment of Error, Appellant argues that the trial court erred

in determining that Appellant was an independent contractor.

       {¶13} “Whether someone is an employee or an independent contractor is

ordinarily an issue to be decided by the trier of fact.” Bostic v. Connor, 37 Ohio St.3d 144

(1988), paragraph one of the syllabus. However, “where the evidence is not in conflict or

the facts are admitted, the question of whether a person is an employee or an

independent contractor is a matter of law to be determined by the court.” Brown–

Spurgeon v. Paul Davis Sys. of Tri–State Area, 12th Dist. Clermont No. CA2012–09–069,

2013–Ohio–1845, ¶ 19.

       {¶14} Whether one is an employee or an independent contractor depends on the

facts of each case. Grange Mutual Cas. Co. v. Laughlin, 5th Dist. Licking No. 12-CA-0089,

2013-Ohio-4447. The key factual determination in making such a finding “is who had the

right to control the manner or means of doing the work.” Bostic, 37 Ohio St.3d at

paragraph one of the syllabus. This inquiry is fact-intensive and requires the consideration

of a number of factors, none of which are dispositive by themselves. Id. at 146. As noted

by the Ohio Supreme Court, in making such a determination, “the factors to be considered

include, but are certainly not limited to, such indicia as who controls the details and quality

of the work; who controls the hours worked; who selects the materials, tools and
Fairfield County, Case No. 17 CA 21                                                      5


personnel used; who selects the routes traveled; the length of employment; the type of

business; the method of payment; and any pertinent agreements or contracts.” Id.

       {¶15} If the employer reserves the right to control the manner and means of doing

the work, as well as the result, then an employer-employee relationship is created. State

ex rel. Nese v. State Teachers Retirement Bd., 136 Ohio St.3d 103, 2013–Ohio–1777, ¶

33. On the other hand, if the employer only specifies the result and the worker determines

the manner and means of doing the job, then an independent contractor relationship is

created. Id. In determining what kind of relationship exists, multiple factors must be

considered, including who controls the details and quality of the work; who controls the

hours worked; who selects the materials, tools, and personnel used; who selects the

routes travelled; the length of employment; the type of business; the method of payment;

and any pertinent agreements or contracts. Bostic at 146.

       {¶16} Due to the fact-intensive nature of the employee/independent contractor

analysis, a trier of fact ordinarily ends up deciding whether a person is an employee or

independent contractor. Id. at 145–46. In the case sub judice, this matter was tried to the

bench so the trial court was the trier of fact.

       {¶17} Here, Appellant signed an independent contractor agreement which stated

that he was responsible for furnishing his own labor, equipment and/or tools; that Fence

Solutions was not responsible for any accidents, stolen tools, or materials or other

liabilities of Appellant; Appellant was responsible for his own damages and repairs;

Appellant was responsible for his own taxes; Appellant was responsible for any personal

injury; Appellant was responsible for his employees, subcontractors, materials,

equipment, and all applicable taxes, benefits, and insurance, including Workers’
Fairfield County, Case No. 17 CA 21                                                       6


Compensation. Additionally, the agreement stated that while Fence Solutions can control

the quality of the work, the subcontractor is an independent contractor in all respects. The

contract also provided that payment was to be given after completion of the job and

satisfaction of the contractor and owner.

       {¶18} At trial, Appellant admitted that he was responsible for his own equipment

and that he provided his own labor and equipment (T. at 145-146). Testimony was

presented that Appellant was responsible for lost or damaged tools, the quality of his

work, any accidents and all materials on the job site. (T. at 180-185). Testimony was also

presented that Appellant could control the hours he worked at a job site and could hire

other subcontractors. (T. at 186-190). Rob Nixon, a fellow independent contractor

employed by Fence Solutions, stated that Appellant would often borrow/use Nixon’s

equipment. (T. at 243). The court also heard testimony that all of the independent

contractors who worked for Fence Solutions, including Appellant were responsible for

obtaining their own Workers’ Compensation insurance and that all except Appellant had

in fact done so. (T. at 186-187).

       {¶19} While Appellant argues that Fence Solutions use of a W-2 rather than a

1099 supports the position that he was an employee, we do not find same to be

determinative of his employment status. Matt Thompson testified that he did not know

why the accountant continued to issue a W-2 to Appellant rather than a 1099 after

Appellant signed the independent contractor agreement. (T. at 182, 213-214). Evidence

was also presented that Fence Solutions did not withhold Federal, State or Local income

taxes from Appellant’s check, but rather paid said taxes for him, in addition to his paid

wages. (T. 182, 214-216).
Fairfield County, Case No. 17 CA 21                                                       7


       {¶20} Appellant also argues that the trial court abused its discretion in excluding

the Industrial Commission’s ruling wherein it found Appellant to be an employee of

Appellee.

       {¶21} The Industrial Commission is the exclusive evaluator of the weight and

credibility of the evidence. State ex rel. LTV Steel Co. v. Indus. Comm., 88 Ohio St.3d

284, 287, 725 N.E.2d 639 (2000). When an order is adequately explained and based on

some evidence, even if other evidence of record may contradict it, there is no abuse of

discretion, and a reviewing court must not disturb the order. State ex rel. Mobley v. Indus.

Comm., 78 Ohio St.3d 579, 584, 679 N.E.2d 300 (1997). Thus, the issue before us is

whether the bureau's order was supported by evidence in the record.

       {¶22} In the instant case, the trial court, in its March 7, 2017, Judgment Entry,

characterized the Industrial Commission’s ruling as a default judgment because Appellee

did not participate in the proceeding. The trial court further found that the sole evidence

before the Industrial Commission was a medical record from Fairfield Medical Center

dated 11/4/15, and that such evidence did not allow for a conclusive determination that

Appellant was an employee.

       {¶23} Upon review, we find that the trial court was in a better position as the trier

of fact to make the determination as to Appellant’s status. At trial, both parties had an

opportunity to present evidence in support of their positions.

       {¶24} Based on the foregoing, we do not find that the trial court abused its

discretion in excluding the findings of the Industrial Commission and making a

determination finding that Appellant was an independent contractor. We find the trial court
Fairfield County, Case No. 17 CA 21                                                      8


had sufficient evidence before it to support its determination Appellee was an independent

contractor, rather than an employee.

      {¶25} Appellant’s First Assignment of Error is overruled.

                                                II.

      {¶26} In his Second Assignment of Error, Appellant argues that the trial court

erred in finding that Appellant was terminated for breach of his independent contractor

agreement. We disagree.

      {¶27} Appellant herein argues that his termination was the result of retaliation for

filing a Workers’ Compensation claim in violation of R.C. §4123.90, which prohibits

employers from taking an adverse employment action against an employee because he

filed, or pursued, a workers' compensation claim for an injury which arose and occurred

in the course of his employment with the employer.

      {¶28} R.C. § 4123.90 provides, in pertinent part:

              No employer shall discharge, demote, reassign, or take any punitive

      action against any employee because the employee filed a claim or

      instituted, pursued or testified in any proceedings under the workers'

      compensation act for an injury or occupational disease which occurred in

      the course of and arising out of his employment with that employer.

      {¶29} “The scope of the statute is nevertheless narrow, and R.C. § 4123.90 does

not prevent an employer from [taking an adverse employment action against] an

employee who is unable to perform his or her duties * * * [or] for just and lawful reasons.

The statute protects only against [adverse employment actions] in direct response to the

filing or pursuit of a workers' compensation claim.” White v. Mt. Carmel Med. Ctr., 150
Fairfield County, Case No. 17 CA 21                                                        9

Ohio App.3d 316, 780 N.E.2d 1054, 2002–Ohio–6446, ¶ 36, quoting Sidenstricker v.

Miller Pavement Maintenance, Inc., Franklin App. Nos. 00AP–1146 and 00AP–1460,

2001–Ohio–4111, ¶ 55. “An employee may assert a claim under this statute only if he

alleges and proves that he was demoted or dismissed, not because of his job-related

injury, but rather because of his pursuit of a workers' compensation claim.” Blair v. Milford

Exempted Village School Dist. Bd. of Edn. (1989), 62 Ohio App.3d 424, 431, 575 N.E.2d

1190, abrogated on other grounds by Coolidge v. Riverdale Local School Dist., 100 Ohio

St.3d 141, 797 N.E.2d 61, 2003–Ohio–5357.

       {¶30} Courts in Ohio have addressed claims filed pursuant to R.C. § 4123.90

under a burden-shifting framework. See, e.g., Young v. Stelter & Brinck, Ltd., 174 Ohio

App.3d 221, 881 N.E.2d 874, 2007–Ohio–6510, ¶ 20–21; Wysong v. Jo Ann Stores, Inc.,

Montgomery App. No. 21412, 2006–Ohio–4644, ¶ 10; Rollison v. Ball, Marion App. No.

9–05–48, 2006–Ohio–5153, ¶ 19; Stone v. Martin Marietta Energy Sys., Inc. (Oct. 5,

1998), Washington App. No. 97CA602; Kilbarger v. Anchor Hocking Glass Co. (1997),

120 Ohio App.3d 332, 337–40, 697 N.E.2d 1080; Napier v. Roadway Freight, Inc., Lucas

App. No. L–06–1181, 2007–Ohio–1326, ¶ 12; Cunningham v. Steubenville Orthopedics

& Sports Medicine, Inc., 175 Ohio App.3d 627, 888 N.E.2d 499, 2008–Ohio–1172, ¶ 56;

Markham v. Earle M. Jorgensen Co. (2000), 138 Ohio App.3d 484, 492, 741 N.E.2d 618;

Herron v. DTJ Ents., Inc., Summit App. No. 22796, 2006–Ohio–1040, ¶ 16; White at ¶ 37;

Prox v. Cleveland Steel Container Corp., Trumball App. No.2005–T–0045, 2006–Ohio–

2770, ¶ 24–26; McDannald v. Fry & Assoc., Inc., Madison App. No. CA2007–08–027,

2008–Ohio–4169, ¶ 17. This burden-shifting analysis is applied in the absence of direct
Fairfield County, Case No. 17 CA 21                                                      10

evidence of retaliation. Wysong v. Jo Ann Stores, Inc., at ¶ 10; Cf. Kohmescher v. Kroger

Co. (1991), 61 Ohio St.3d 501, 575 N.E.2d 439.

       {¶31} Under the burden-shifting scheme, the employee must first set forth a prima

facie case of retaliation, then the burden shifts to the employer to set forth a legitimate

non-retaliatory reason for the adverse employment action and, finally, the burden shifts

back to the employee to establish that the employer used that non-retaliatory reason as

a pretext for the adverse employment action. Markham at 492, 741 N.E.2d 618. “The

burden of proving that the employer had a retaliatory motive remains at all times on the

employee.” Id.

       {¶32} In establishing a prima facie case of retaliation, an employee must show

that he: (1) was injured on the job, (2) filed a workers' compensation claim, and (3)

suffered an adverse employment action in contravention of R.C. § 4123.90. Kilbarger at

337–338, 697 N.E.2d 1080.

       {¶33} “ ‘The burden of establishing a prima facie case of retaliation is not onerous

and is easily met.” Wysong at ¶ 12, quoting Greer–Burger v. Temesi, Cuyahoga App. No.

87104, 2006–Ohio–3690, ¶ 15; Meyer v. United Parcel Serv., Inc., 174 Ohio App.3d 339,

882 N.E.2d 31, 2007–Ohio–7063, ¶ 53, reversed on other grounds by Slip Opinion No.

2009–Ohio–2463. The activity protected by R.C. § 4123.90 is triggered when an

“employee file[s] a claim or institute[s], pursue[s] or testifie[s] in any proceedings under

the workers' compensation act.” While a discharge, demotion, reassignment, or any

punitive action taken by the employer constitutes an adverse employment action under

R.C. § 4123.90.
Fairfield County, Case No. 17 CA 21                                                     11


       {¶34} “If the plaintiff establishes his or her prima facie case, then the burden of

production shifts to the employer to articulate a legitimate non-retaliatory reason for its

action.” Sidenstricker at ¶ 59. “[T]he burden does not require the employer to prove the

absence of a retaliatory discharge. It merely requires the employer to set forth a

legitimate, non-retaliatory reason for the employee's discharge.” Kilbarger at 338, 697

N.E.2d 1080. “When considering whether an employer has a legitimate non-retaliatory

reason for discharging an employee, the court must keep in mind the fact that an

employee who files a workers' compensation claim is not insulated from discharge.”

Markham, 138 Ohio App.3d at 492, 741 N.E.2d 618. “R.C. 4123.90 does not operate to

suspend the rights of an employer nor does it insulate an employee from otherwise lawful

actions taken by the employer. To hold otherwise would render employers virtually

powerless to combat fraud and/or blatant inefficaciousness on the part of any employee

who happened to have a pending workers' compensation claim.” Id. at 494, 741 N.E.2d

618.

       {¶35} “[I]f the employer sets forth a legitimate, non-retaliatory reason, the burden

once again shifts to the employee * * * [who] must then establish that the reason

articulated by the employer is pre-textual and that the real reason for the discharge was

the employee's filing of a claim under the Ohio Workers' Compensation Act.” Kilbarger at

338, 697 N.E.2d 1080. Pre-text may be shown in a variety of different manners. The

employee may show that the employer's proffered reason: (1) had no basis in fact, (2) did

not actually motivate the adverse employment action, or (3) was insufficient to motivate

the adverse employment action. Wysong at ¶ 13; King v. Jewish Home, 178 Ohio App.3d

387, 2008–Ohio–4729, ¶ 9.
Fairfield County, Case No. 17 CA 21                                                    12


       {¶36} As this Court has found that the trial court’s determination that Appellant

was an independent contractor and not an employee as contemplated by R.C. §4123.90,

we find no violation of said statute.

       {¶37} Appellant’s Second Assignment of Error is overruled.

                                               III.

       {¶38} In his Third Assignment of Error, Appellant argues that the trial court erred

in finding that Appellee did not violate the Prompt Pay Act. We disagree.

       {¶39} Ohio's Prompt Pay Statute is codified in R.C. §4113,15, which reads, in

pertinent part:

              (A) Every individual, firm, partnership, association, or corporation

       doing business in this state shall, on or before the first day of each month,

       pay all its employees the wages earned by them during the first half of the

       preceding month ending with the fifteenth day thereof, and shall, on or

       before the fifteenth day of each month, pay such employees the wages

       earned by them during the last half of the preceding calendar month. If at

       any time of payment an employee is absent from his regular place of labor

       and does not receive his wages through an authorized representative, such

       person shall be entitled to said payment at any time thereafter upon demand

       upon the proper paymaster at the place where such wages are usually paid

       and where such pay is due. This section does not prohibit the daily or weekly

       payment of wages, the use of a longer time lapse that is customary to a

       given trade, profession or occupation, or establishment of a different time

       lapse by written contract or by operation of law.
Fairfield County, Case No. 17 CA 21                                                     13


       {¶40} When wages are 30 days past due, the employer is liable for the amount

due plus 6% or $200, whichever is greater. R.C. §4113.15(B).

       {¶41} Appellant argues that Appellee failed to provide him with his last paycheck

until four months after termination.

       {¶42} At trial, Appellee Thompson testified that Appellant’s final paycheck, in the

amount of $348.00, was issued on November 12, 2015. (T. at 204). Appellee Thompson

provided the court with text messages between himself and Appellant verifying

Appellant’s address on or about November 14, 2015. (T. at 150).

       {¶43} Based on the testimony of Appellee Thompson, we find the trial court had

sufficient evidence before it to support its determination that payment was issued timely

pursuant to R.C. §4113.15.

       {¶44} Appellant’s Third Assignment of Error is overruled.

                                                  IV.

       {¶45} In his Fourth Assignment of Error, Appellant argues that the trial court erred

in finding that Appellant was not entitled to back overtime pay. We disagree.

       {¶46} The Ohio's Minimum Fair Wage Standards Act requires all employers to pay

a minimum wage and overtime to certain types of employees. See R.C. §4111.02 (duty

to pay minimum wage), R.C. §4111.03 (overtime; compensatory time), and R.C.

§4111.14 (purposes of fair minimum wage constitutional provision; implementation).

Additionally, the Ohio Constitution was amended under Article II, Section 34a to ensure

minimum wages for Ohio workers. Article II, Section 34a, Ohio Constitution specifically

states that “[t]his section shall be liberally construed in favor of its purposes.”
Fairfield County, Case No. 17 CA 21                                                   14


      {¶47} In Ohio, claims for overtime pay are generally governed by R.C.

§4111.03(A), which stated in pertinent part:

             (A) An employer shall pay an employee for overtime at a wage rate

      of one and one-half times the employee's wage rate for hours worked in

      excess of forty hours in one workweek, in the manner and methods provided

      in and subject to the exemptions of section 7 and section 13 of the “Fair

      Labor Standards Act of 1938,” 52 Stat. 1060, 29 U.S.C.A. 207, 213, as

      amended.

      {¶48} Appellant herein argues that he was not paid for overtime on two separate

occasions: $17.00 in overtime for the week of June 22-26 when he worked 43.5 hours,

and for the week of September 14-16 when he worked 47.75 hours. (T. at 104-110).

      {¶49} Based on the testimony and evidence presented at trial, the trial court found

that Appellant received all overtime time to which he was entitled. (Judgment Entry at 2,

Findings of Fact ¶6).    The trial court found that on the occasions when Appellant

communicated to Appellee that he felt his paychecks were less than they should be,

Appellee always paid Appellant what was owed to him. Id. The trial court further found

that because Appellee paid Appellant’s Federal, State and Local income taxes in addition

to his agreed upon wages, Appellant actually received a wage benefit in excess of any

alleged de minimis overtime wage discrepancy. Id.

      {¶50} It is accepted that de minimis errors and admissions in complying with the

prevailing wage laws are not intentional. R.C. §4115.13(C); State ex rel. Associated

Builders & Contractors of Central Ohio v. Franklin County Board of Commissioners, 125

Ohio St.3d 112, 2010-Ohio-1199, 926 N.E.2d 600; Ohio Valley Associated Builders &
Fairfield County, Case No. 17 CA 21                                                       15

Contractors v. Rapier Electric, Inc., 12th Dist. Butler Nos. CA2013–07–110 and CA2013–

07–121, 2014-Ohio-1477, 2014 WL 1384605.

       {¶51} We find no error in the trial court’s determination that the actions of Appellee

sub judice were de minimis or the result of clerical errors, and that Appellant had in fact

received adequate compensation for his work.

       {¶52} Appellant’s Fourth Assignment of Error is overruled.

       {¶53} For the forgoing reasons, the judgment of the Court of Common Pleas of

Fairfield County, Ohio, is affirmed.


By: Wise, P. J.

Hoffman, J., and

Baldwin, J., concur.




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