[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Haight v. Minchak, Slip Opinion No. 2016-Ohio-1053.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 2016-OHIO-1053
         HAIGHT ET AL., APPELLEES, v. MINCHAK ET AL., APPELLANTS.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as Haight v. Minchak, Slip Opinion No. 2016-Ohio-1053.]
Minimum wage—R.C. 411.14—The meaning of the term “employee” under R.C.
        4111.14(B)(1) is constitutionally valid because it does not clearly conflict
        with or restrict the meaning of that same term under Article II, Section 34a
        of the Ohio Constitution.
   (No. 2014-1241—Submitted September 2, 2015—Decided March 17, 2016.)
     APPEAL from the Court of Appeals for Montgomery County, No. 25983,
                                    2014-Ohio-2447.
                               _____________________
                              SYLLABUS OF THE COURT
The meaning of the term “employee” under R.C. 4111.14(B)(1) is constitutionally
        valid because it does not clearly conflict with or restrict the meaning of that
        same term under Article II, Section 34a of the Ohio Constitution.
                               _____________________
                             SUPREME COURT OF OHIO




       LANZINGER, J.
       {¶ 1} In this appeal, we are asked to determine whether the definition of the
term “employee” set forth in R.C. 4111.14(B)(1) clearly conflicts with the
definition of the same term set forth in the Ohio Constitution, Article II, Section
34a. Because it does not, we hold that R.C. 4111.14(B)(1) is constitutional.
                                 Case Background
       {¶ 2} This is a case involving the applicability of Ohio’s minimum-wage
law. Appellees, John Haight and Christopher Pence, were employed as sales
representatives by the Cheap Escape Company, which was owned by appellants,
Robert and Joan Minchak.         Cheap Escape published J.B. Dollar Stretcher
Magazine, for which the sales representatives solicited advertising business.
Haight and Pence allege that although they were to be paid either by commissions
plus a draw (in the nature of an advance) or by commissions only, the Minchaks
stopped paying or reduced the amount of the draw for certain sales
representatives―those with the company for a certain length of time or those
believed to be underperforming.         The draw that was available to a sales
representative who failed to earn a commission fell below the minimum wage
mandated by Article II, Section 34a of the Ohio Constitution, according to Haight
and Pence. They filed a class-action lawsuit that sought, among other things, a
declaration that certain provisions of R.C. 4111.14 were unconstitutional, an
injunction against the Minchaks from engaging in unlawful employment practices,
an award of unpaid wages, and treble damages.
       {¶ 3} Haight and Pence requested a declaration from the Montgomery
County Court of Common Pleas that as employees, they were entitled to minimum
wage. They argued that because R.C. 4111.14(B)(1) contains exemptions from the
definition of “employee” that Article II, Section 34a of the Ohio Constitution does
not contain, the statute is unconstitutional. In the alternative, they argued that R.C.
4111.14(B) does not apply to claims for minimum-wage violations brought under




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the Constitution. Haight and Pence acknowledged that they could advance their
minimum-wage claims only if they were employees, but they contended that
exempting salespeople from the definition of “employee,” as permitted in R.C.
4111.14(B)(1), would conflict with the definition of “employee” in Article II,
Section 34(a). The trial court disagreed and declared that R.C. 4111.14(B)(1) is
constitutionally valid and that the exemptions within the statute apply to claims
brought under Article II, Section 34a.
       {¶ 4} The Second District Court of Appeals reversed. The appellate court
concluded that the General Assembly exceeded its authority when it defined
“employee” differently, and more narrowly, than did the Constitution. 2014-Ohio-
2447, 11 N.E.3d 1258 (2d Dist.), ¶ 24.
       {¶ 5} We accepted the Minchaks’ discretionary appeal on the following
propositions of law:


               [1.] The meaning of the term “employee” under R.C.
       4111.14(B)(1) is constitutionally valid because it does not clearly
       conflict with or restrict the meaning of that same term under Article
       II, Section 34a of the Ohio Constitution.
               [2.] If the statutory definition of “employee” under R.C.
       4111.14(B)(1) is unconstitutional and invalid, that conclusion and
       ruling should apply prospectively only under the three-part test
       propounded in DiCenzo v. A-Best Prods. Co. [120 Ohio St.3d 149,
       2008-Ohio-5327, 897 N.E.2d 132].




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                                     Analysis
Definition of “Employee” under Article II, Section 34a of the Ohio Constitution
and R.C. 4111.14(B)(1)
       {¶ 6} In November 2006, Ohio voters approved the Fair Minimum Wage
Amendment to the Ohio Constitution, which establishes a minimum rate that
employers must pay their employees and requires annual adjustments of that
amount. Article II, Section 34a. The section further provides:


       “[E]mployer,” “employee,” “employ,” “person” and “independent
       contractor” have the same meanings as under the federal Fair Labor
       Standards Act or its successor law, except that “employer” shall also
       include the state and every political subdivision and “employee”
       shall not include an individual employed in or about the property of
       the employer or individual’s residence on a casual basis. Only the
       exemptions set forth in this section shall apply to this section.
              ***
              This section shall be liberally construed in favor of its
       purposes. Laws may be passed to implement its provisions and
       create additional remedies, increase the minimum wage rate and
       extend the coverage of the section, but in no manner restricting any
       provision of the section or the power of municipalities under Article
       XVIII of this constitution with respect to the same.


(Emphasis added.) Id.
       {¶ 7} Shortly after, the General Assembly enacted Am.Sub.H.B. No. 690
(“H.B. 690”), 151 Ohio Laws, Part V, 9576, to implement the provisions of Article
II, Section 34a. As part of that enactment, R.C. 4111.14 provides:




                                          4
                               January Term, 2016




               (B) In accordance with Section 34a of Article II, Ohio
       Constitution, the terms “employer,” “employee,” “employ,”
       “person,” and “independent contractor” have the same meanings as
       in the “Fair Labor Standards Act of 1938,” 52 Stat. 1060, 29 U.S.C.
       203, as amended. In construing the meaning of these terms, due
       consideration and great weight shall be given to the United States
       department of labor’s and federal courts’ interpretations of those
       terms under the Fair Labor Standards Act and its regulations. As
       used in division (B) of this section:
               (1) “Employee” means individuals employed in Ohio, but
       does not mean individuals who are excluded from the definition of
       “employee” under 29 U.S.C. 203(e) or individuals who are
       exempted from the minimum wage requirements in 29 U.S.C. 213
       and from the definition of “employee” in this chapter.


(Emphasis added.)
Positions of the parties
       {¶ 8} R.C. 4111.14(B)(1) refers to 29 U.S.C. 203(e), which contains both
the basic definition of “employee” as “any individual employed by an employer,”
29 U.S.C. 203(e)(1), and the enumerated exceptions to that definition, 29 U.S.C.
203(e)(2) through (4). The same subdivision of the statute also refers to 29 U.S.C.
213, which exempts certain employees from certain federal requirements, including
minimum-wage and maximum-hour requirements. 29 U.S.C. 213(a) and (b).
Haight and Pence agree that 29 U.S.C. 203(e) is incorporated into the Ohio
Constitution because that is the section that defines “employee.” Thus, the issue
here is whether the exemptions set forth in 29 U.S.C. 213 are also properly
exempted from the statutory definition of “employee.”




                                         5
                             SUPREME COURT OF OHIO




       {¶ 9} The Minchaks argue that the entire Fair Labor Standards Act
(“FLSA”), 29 U.S.C. 201 et seq., is incorporated into Article II, Section 34a of the
Ohio Constitution (the “Fair Minimum Wage Amendment”), because the drafters
of the constitutional amendment would have pinpointed only specific provisions of
the FLSA if they had intended to incorporate less than the entire act. They also
argue that because the constitutional language is broad, supplemental legislation
was required to clarify the definition of employee.
       {¶ 10} Haight and Pence, on the other hand, argue that the Fair Minimum
Wage Amendment incorporates only the definition of “employee” that appears in
29 U.S.C. 203(e). They contend that it is inappropriate to look at the exemptions
in 29 U.S.C. 213 to define “employee” because Article II, Section 34a of the Ohio
Constitution states that “[o]nly the exemptions set forth in this section shall apply
to this section.”   They note that the Fair Minimum Wage Amendment then
expressly sets forth five exemptions: tipped employees, employees with mental or
physical disabilities, employees of solely owned and operated family businesses
who are family members of the owner, employees under the age of 16, and
individuals employed in or about the property of the employer or individual’s
residence on a casual basis.       Haight and Pence argue that because R.C.
4111.14(B)(1) allows more exemptions from the definition of “employee” than
those set forth in the Fair Minimum Wage Amendment, the statute is
unconstitutional.
       {¶ 11} It is well settled that “[a]n enactment of the General Assembly is
presumed to be constitutional, and before a court may declare it unconstitutional it
must appear beyond a reasonable doubt that the legislation and constitutional
provisions are clearly incompatible.” State ex rel. Dickman v. Defenbacher, 164
Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus. In determining
whether a legislative act conflicts with a constitutional provision, courts must
liberally construe statutes in order to save them from constitutional infirmity.




                                         6
                                January Term, 2016




Desenco, Inc. v. Akron, 84 Ohio St.3d 535, 538, 706 N.E.2d 323 (1999). The party
challenging the constitutionality of the statute bears the burden of proving its
constitutional infirmity. Univ. Hts. v. O’Leary (1981), 68 Ohio St.2d 130, 135, 429
N.E.2d 148 (1981). We have also stated that “the state Constitution is primarily a
limitation on legislative power of the General Assembly. It follows that the General
Assembly may pass any law unless it is specifically prohibited by the state or
federal Constitutions.” (Emphasis sic.) State ex rel. Jackman v. Cuyahoga Cty.
Court of Common Pleas, 9 Ohio St.2d 159, 162, 224 N.E.2d 906 (1967).
       {¶ 12} With these provisions in mind, we observe first that both Article II,
Section 34a of the Ohio Constitution and R.C. 4111.14(B) state that the term
“employee” shall have the same “meanings” as provided in the FLSA. Although
R.C. 4111.14(B)(1) then specifically states that the term “employee” “does not
mean individuals who are excluded from the definition of ‘employee’ under 29
U.S.C. 203(e) or individuals who are exempted from the minimum wage
requirements in 29 U.S.C. 213,” the language is not inconsistent with the
constitutional provision. The Fair Minimum Wage Amendment incorporates the
FLSA without any limitation.
       {¶ 13} The amendment states that “employer” and “employee,” as well
other words, “have the same meanings as under the federal Fair Labor Standards
Act.” (Emphasis added.) “Meanings” is plural, indicating more than one definition
applies, which then necessarily includes both exclusions and exemptions. It would
have been a simple matter for the drafters of the Fair Minimum Wage Amendment
to include a limitation by referring to a specific section of the FLSA. Since there
is no limitation, the constitutional provision’s use of the plural term “meanings”
indicates that the entirety of the FLSA is to be considered when determining who
is covered under its protections.
       {¶ 14} Nor are we persuaded that the provision in Article II, Section 34a of
the Ohio Constitution that “[o]nly the exemptions set forth in this section shall




                                         7
                              SUPREME COURT OF OHIO




apply to this section” precludes the incorporation of the FLSA exemptions. The
Fair Minimum Wage Amendment itself includes exemptions for employees who
receive tips and employees of a family-owned-and-operated business who are
family members of the owner. These are not generally included in 29 U.S.C.
213(a)(1), which includes exemptions for employees engaged in an executive,
administrative, or professional capacity or as outside salespersons, summer-camp
employees, fishing-operation employees, small-publication employees, and
employees who are immediate family members working in agriculture. But the
addition of these exemptions does not suggest that other FLSA exemptions are not
included within the “meanings” of the term “employee.” We agree with the
dissenting appellate judge that it is logical to conclude that the drafters did not need
to restate the FLSA exemptions within Article II, Section 34 of the Ohio
Constitution because those exemptions had already been incorporated. 2014-Ohio-
2447, 11 N.E.3d 1258 (2d Dist.), ¶ 30.
        {¶ 15} The proponents of the Ohio Fair Minimum Wage Amendment issued
a publication entitled “Fact vs. Fiction: Minimum Wage Opponents Shamelessly
Distort Facts to Deny Low-Wage Workers a Raise,” which informed Ohio voters
of the following:


                (1) The Amendment defines “employer,” “employee,” and
        “employ” as having the same meanings as under the federal Fair
        Labor Standards Act. Clear definitions for terms such as “employ”
        and “casual basis” will not necessitate litigation to clarify their
        meanings because those terms have been established by federal
        regulations, well settled case law, or both.
                (2) By referencing the federal minimum wage law directly,
        the Amendment ensures that the Ohio law tracks the federal




                                           8
                                January Term, 2016




       minimum wage requirements with respect to individuals who
       volunteer their time.
               (3) The Amendment does not threaten employees’ privacy
       because employees may seek access only to their own payroll
       records.
               (4) The Amendment allows an employer to take reasonable
       steps to verify that a person does in fact represent the employee.
               (5) Employment law experts explain that state authorities in
       Ohio will undoubtedly interpret the parallel language in the
       Amendment in the same manner as the federal Department of Labor,
       clarifying that employers need not keep irrelevant records for non-
       hourly employees.


H.B. 690, 151 Ohio Laws, Part V, 9589-9590. It appears that the proponents
intended that terms such as “employee” are to be defined consistently with the
definition in federal law; this necessarily includes the exemptions.
       {¶ 16} Haight and Pence finally argue that if we determine that the statutory
provision does not conflict with the Constitution, then we should further determine
whether Article II, Section 34a of the Ohio Constitution is self-executing and
whether R.C. 4111.14(B)(1) applies to lawsuits brought under the Constitution.
Because we determine that the Fair Minimum Wage Amendment incorporates the
FLSA exemptions, it is irrelevant whether the provision is self-executing. Both
Article II, Section 34a of the Ohio Constitution and R.C. 4111.14 include the FLSA
exemptions within the term “employee.”
       {¶ 17} Based on the above, we cannot conclude that R.C. 4111.14(B)(1)
conflicts with Article II, Section 34a beyond a reasonable doubt. We therefore hold
that the meaning of the term “employee” under R.C. 4111.14(B)(1) is




                                         9
                             SUPREME COURT OF OHIO




constitutionally valid because it does not clearly conflict with or restrict the
meaning of that same term under Article II, Section 34a of the Ohio Constitution.
        {¶ 18} As a result, we need not address the Minchaks’ second proposition
of law regarding the prospective application of the definition of “employee.”
                                    Conclusion
        {¶ 19} To be entitled to minimum wage, an individual must be an
“employee.”     Article II, Section 34a of the Ohio Constitution provides that
“employee” shall have the same “meanings” as in the FLSA. This provision is
without further limitation. Therefore, both the FLSA exclusions and exemptions
are to be considered when determining whether an individual is an employee.
Because R.C. 4111.14(B)(1)’s provisions are consistent with this interpretation, the
statute is constitutional.
        {¶ 20} The judgment of the Second District Court of Appeals is reversed.
                                                                 Judgment reversed.
        O’CONNOR, C.J., and KENNEDY and FRENCH, JJ., concur.
        O’DONNELL, J., concurs in syllabus and judgment only.
        O’NEILL, J., dissents with an opinion in which PFEIFER, J., joins.
                             ____________________
        O’NEILL, J., dissenting.
        {¶ 21} We have a system of government that derives its power from the
consent of the governed. It is the people who have the right to alter and reform the
government. That being said, amending the Ohio Constitution is not an easy
process, nor should it be. A written petition containing 1,000 signatures is just the
beginning. R.C. 3519.01. After the initial petition is certified, the petitioners must
gather the signatures of at least ten percent of the total of those who cast votes in
the previous gubernatorial election. Article II, Sections 1a and 1g, Ohio
Constitution. The signatures must come from 44 of Ohio’s 88 counties. Article II,
Section 1g, Ohio Constitution.




                                         10
                                 January Term, 2016




         {¶ 22} In 2006, a petition to amend the Ohio Constitution and raise the
minimum wage for the state of Ohio to $6.85 was successfully placed on the ballot.
On November 7, 2006, Ohio voters approved State Issue 2 with 56.6 percent of the
votes.         Ohio      Secretary     of        State,   2006   Elections    Results,
http://www.sos.state.oh.us/sos/elections/Research/electResultsMain/2006Election
sResults/06-1107Issue2.aspx (accessed Mar. 8, 2016). To be precise, that meant
2,205,929 Ohio voters voted in favor of the provision. Id. Thus State Issue 2
became Article II, Section 34a, of the Ohio Constitution.
         {¶ 23} Article II, Section 34a, Ohio Constitution expressly states that the
only exemptions to the requirement to pay a minimum wage are those that are set
forth in that amendment. In general terms, those exceptions are for children under
16 years of age; employees who work for a business that grossed less than $250,000
in the preceding calendar year; workers employed on a casual basis at an
employer’s residence; employees who receive tips, if the employer can show that
the tips and wages combined equal the minimum wage; workers at a family-owned
business who are family members of the owner; and workers with mental or
physical disabilities, if their employer obtained a state license to pay a lower wage.
The amendment also provides, “This section shall be liberally construed in favor of
its purposes. Laws may be passed to implement its provisions and create additional
remedies, increase the minimum wage rate and extend the coverage of the section,
but in no manner restricting any provision of the section * * *.”
         {¶ 24} The bill containing the statutory provision at issue in this case, R.C.
4111.14(B)(1), was introduced a mere 21 days after passage of the amendment and
was passed less than a month later, on December 20, 2006. Am.Sub.H.B. No. 690,
151 Ohio Laws, Part V, 9576. See Legislative Service Commission Bill Analysis,
Am.Sub.H.B. No. 690 (2006). That is a rapid response. R.C. 4111.14(B) restated
that “employee” has the same meaning as in the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. 203 (the definitions section of the FLSA). However, R.C.




                                            11
                              SUPREME COURT OF OHIO




4111.14(B)(1) then incorporated the exclusions contained in the federal minimum-
wage law found in 29 U.S.C. 203 as well as the exemptions found in 29 U.S.C. 213.
R.C. 4111.14. There is no possible stretch of the English language that can disguise
the fact that the statute has the effect of restricting a provision in the constitutional
amendment, which had been recently approved by more than two million voters.
        {¶ 25} The Second District Court of Appeals got this case right. The
exemption found in the federal minimum-wage law for outside salespersons, and
other exemptions, were not included in Ohio’s constitutional amendment and
cannot be reasonably interpreted as such. By incorporating into Ohio law the
exemptions set forth in the federal law, the General Assembly modified the decision
of the voters of the state of Ohio and impermissibly narrowed and restricted the
meaning of the word “employee” in the amendment. Accordingly, that portion of
the statute should be declared unconstitutional.           State ex rel. Dickman v.
Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955). Simply stated, the Ohio
General Assembly cannot surreptitiously override the will of the people of Ohio.
The voters have spoken, and the General Assembly and this court must listen. I
dissent.
        PFEIFER, J., concurs in the foregoing opinion.
                               ____________________
        Markovits, Stock & DeMarco, L.L.C., and Andrew Biller, for appellees.
        Stark & Knoll Co., L.P.A., John P. Susany, and Kathleen A. Hahner, for
appellants.
        Vorys, Sater, Seymour and Pease, L.L.P., Nelson D. Cary, Daniel J. Clark,
Michael C. Griffaton, and George L. Stevens, urging reversal for amici curiae Ohio
Council of Retail Merchants, Ohio Chamber of Commerce, Ohio Chapter of the
National Federation of Independent Business, Ohio Farm Bureau Federation, and
Ohio Management Lawyers Association.




                                           12
                             January Term, 2016




       Barkan, Meizlish, Handelman, Goodin, DeRose & Wentz, L.L.P., Robert
E. DeRose, and Trent R. Taylor, urging affirmance for amicus curiae Ohio
Association for Justice.
       The Gittes Law Group, Frederick M. Gittes, and Jeffrey P. Vardaro; and
Fortney & Klingshirn and Neil Klingshirn, urging affirmance for amicus curiae
Ohio Employment Lawyers’ Association.
                           ___________________




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