[Cite as Porter v. AJ Automotive Group, Inc., 2015-Ohio-3769.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 102448



                         STEPHANIE PORTER, ET AL.
                                                           PLAINTIFFS-APPELLANTS

                                                     vs.

               AJ AUTOMOTIVE GROUP, INC., ET AL.
                                                           DEFENDANTS-APPELLEES




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CV-12-782457

        BEFORE: Boyle, J., Celebrezze, A.J., and Jones, J.

        RELEASED AND JOURNALIZED: September 17, 2015
ATTORNEY FOR APPELLANTS

Alan I. Goodman
55 Public Square, Suite 1300
Cleveland, Ohio 44113-1971


ATTORNEYS FOR APPELLEES

Milton D. Jefferson
11502 Nelson Avenue
Cleveland, Ohio 44105

Malinda A. Harp
21891 Forbes Road
Suite 202
Oakwood Village, Ohio 44146

Joseph W. Jasper, Jr.
614 West Superior Avenue
Suite 940
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

      {¶1} Plaintiffs-appellants, Stephanie Porter and Philip White, appeal from the

trial court’s judgment finding that they are not entitled to recover under Ohio’s Minimum

Fair Wage Standards Act (“OMFWSA”), R.C. 4111.01 et seq., and Article II, Section

34a, of the Ohio Constitution, which would provide for the recovery of their reasonable

attorney fees and costs and double damages on their minimum wage claim. Finding

merit to the appeal, we reverse and remand for further proceedings.

                              Procedural History and Facts

      {¶2} Porter and White filed the underlying action against their former employer,

defendants-appellees AJ Automotive Group and Andrew Jackson, asserting claims under

the federal and state provisions of the Fair Labor Standards Act (FLSA) (29 U.S.C. 201,

et seq.), the OMFWSA (R.C. 4111.01, et seq.), and Article II, Section 34a, Ohio

Constitution. Porter and White, who both worked for specific periods in the car wash

section of AJ Automotive, alleged that they did not receive the applicable minimum wage

and did not receive overtime pay for the periods that they worked in excess of 40 hours

per week.

      {¶3} Following a bench trial, the trial court found that plaintiffs failed to prove

that AJ Automotive met the governing definition of “enterprise engaged in commerce” or

“employer” to invoke either the federal or state law statutory scheme.   The trial court,

however, invoked its equitable powers and awarded plaintiffs the amount that they

received less than the minimum wage and the amount of overtime compensation due.
The trial court awarded $2,264.49 to Porter, who worked from June 16, 2011 through

February 16, 2012, and awarded $1,505.88 to White, who worked from August 11, 2011

through March 22, 2012. Specifically, the trial court found that Porter was entitled to

$2,140.54 on the minimum wages lost and $123.95 in overtime pay due. As for White,

the trial court found that he was entitled to $1,471.45 on minimum wages lost and $34.38

in overtime pay due.    In reaching this conclusion, the trial court expressly rejected AJ

Automotive’s argument that the employees were properly compensated as “tipped”

employees.    The trial court ordered that AJ Automotive and Andrew Jackson were

jointly and severally liable for the damages, which does not include either of the parties’

attorney fees or expenses.   The trial court further denied Porter and White’s request for

attorney fees and additional damages afforded under the federal and state laws and the

Ohio Constitution.

       {¶4} Porter     and   White    subsequently    filed   motions    for   a     judgment

notwithstanding the verdict and a new trial, both of which the trial court denied.

       {¶5} Porter and White now appeal, raising a single assignment of error:

              The lower court erred in finding the Appellants could not recover
       under the OMFWSA and under the Ohio Constitution for unpaid minimum
       wage and overtime compensation.



         Application of OMFWSA and Article II, Section 34a, Ohio Constitution

       {¶6} Initially, we note that neither party is disputing the trial court’s calculation

as to the base amount of payment due to Porter and White based on the documentation
presented at trial.   Nor is there any challenge as to the finding that they were paid less

than minimum wage and denied overtime compensation. Notably, AJ Automotive and

Andrew Jackson have not filed a cross-appeal, challenging any of the trial court’s

findings, including that Porter and White were not “tipped” employees. Further, Porter

and White do not challenge the trial court’s finding relating to the application of federal

law.   Our issue on appeal is therefore narrow and limited to whether the trial court

properly found that OMFWSA and Article II, Section 34a, of the Ohio Constitution did

not apply, including the provisions allowing for the recovery of double damages on the

minimum wage claim and reasonable attorney fees and costs.       And here, we find that the

trial court erred.

       {¶7} The OMFWSA 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.” Similarly, the OMFWSA

relies on the FLSA’s definition of “employer” for purposes of a minimum wage claim,

which should also be liberally construed to achieve the goals of the act. Ellington v. E.

Cleveland, 689 F.3d 549, 554-555 (6th Cir.2012) (recognizing that “the remedial
purposes of the FLSA require the courts to define ‘employer’ more broadly than the term

would be interpreted in traditional common law applications”).

       {¶8} According to the trial court’s decision, it reasoned that the OMFWSA did

not apply because plaintiffs failed to establish that AJ Automotive and Andrew Jackson

met the definition of “employer” as contained in R.C. 4111.03(D)(2), which provides in

relevant part:

       (2)     “Employer” means * * * any individual, partnership, association,
       corporation, business trust, or any person or group of persons, acting in the
       interest of any employer in relation to an employee, but does not include an
       employer whose annual gross volume of sales made for business done is less than
       one hundred fifty thousand dollars * * *.

           {¶9}   The trial court’s reliance on this section to deny plaintiffs protection under the

   OMFWSA was flawed for two reasons. First, this section applies to “overtime” and does

   not relate to a claim for failure to pay minimum wage, which is the bulk of Porter and

   White’s claims. R.C. 4111.02, which governs an employer’s duty to pay minimum wage,

   expressly states that “[e]very employer, as defined in Section 34a, Article II, Ohio

   Constitution, shall pay each of the employer’s employees at a wage rate of not less than the

   wage rate specified in Section 34a of Article II, Ohio Constitution.” The statute does not

   contain a sales threshold within the definition of an employer.

           {¶10} Article II, Section 34a, Ohio Constitution sets forth that “‘employer’ and

   ‘employee’ shall have the same meanings as under the federal Fair Labor Standards Act or its

   successor law * * *.” Under the federal FLSA, AJ Automotive and Andrew Jackson

   satisfy the broad definition of “employer,” which is defined as “any person acting
directly or indirectly in the interest of an employer in relation to an employee * * *.”

29 U.S.C. 203(d).

       {¶11} Secondly, to the extent that the definition contained in R.C.

4111.03(D)(2) applies to Porter and White’s overtime claim, the trial court

erroneously placed the burden on them to prove the sales threshold. Recognizing the

remedial purpose of both the federal FLSA and OMFWSA, and that exemptions from

coverage under the act should be narrowly construed, the Tenth Appellate District

held that the employer — not the employee — “has the burden of proving that the

business’ gross volume is less than the $150,000 figure.” Graham v. Harbour, 20

Ohio App.3d 293, 297, 486 N.E.2d 184 (10th Dist.1984).                Additionally, AJ

Automotive and Andrew Jackson do not seek to invoke R.C. 4111.03(D)(2) as a

defense to Porter and White’s claims.    Indeed, they did not assert in the proceedings

below that plaintiffs’ claims fail based on the grounds relied upon by the trial court.

They have never denied their status as “employer” under R.C. 4111.03(D)(2), nor do

they do so on appeal.

       {¶12} Accordingly, we find that the trial court erred in failing to afford the

plaintiffs their full remedies under OMFWSA and the Ohio Constitution. Given that

the trial court has already found that AJ Automotive and Andrew Jackson have

violated OMFWSA and the Ohio Constitution by failing to pay Porter and White

minimum wage and overtime compensation owed, plaintiffs are entitled to additional

damages, including costs and reasonable attorney fees as set forth in Article II,
Section 34a, Ohio Constitution, and OMFWSA.

       {¶13} The sole assignment of error is sustained.         Judgment reversed and

remanded for further proceedings, including a hearing on the employees’ costs and

reasonable attorney fees.   The trial court is further ordered to amend its damages

award to account for the double damages provision in the OMFWSA and Article II,

Section 34a, Ohio Constitution regarding Porter and White’s minimum wage claim,

namely, award Porter $4,281.08 and award White $2,942.90.          The overtime award

remains as previously ordered.

       It is ordered that appellants recover from appellees the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

FRANK D. CELEBREZZE, JR., A.J., and
LARRY A. JONES, SR., J., CONCUR
