[Cite as Haight v. Cheap Escape Co., 2014-Ohio-2447.]

 IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO 

JOHN HAIGHT, et al. : 

Plaintiffs-Appellants : C.A. CASE NO. 25983 

v. : T.C. NO. 12CV946 

CHEAP ESCAPE COMPANY, et al. : (Civil appeal from 

 Common Pleas Court) 

Defendants-Appellees : 

 : 

 . . . . . . . . . . 

O P I N I O N

Rendered on the 6th day of June , 2014. 

 . . . . . . . . . . 

ANDREW BILLER, Atty. Reg. No. 0081452, 4200 Regent Street, Suite 200, Columbus, 

Ohio 43219 

and 

FREDERICK M. GITTES, Atty. Reg. No. 0031444, 723 Oak Street, Columbus, Ohio 43205 

Attorneys for Plaintiffs-Appellants 

JOHN P. SUSANY, Atty. Reg. No. 0039472 and PATRICK G. O’CONNOR, Atty. Reg. No. 

0086712, 3475 Ridgewood Road, Akron, Ohio 44333 

Attorneys for Defendants-Appellees, Robert Minchak and Joan Minchak 

JENNIFER D. BRUMBY, Atty. Reg. No. 0076440 and MICHAEL P. BRUSH, Atty. Reg. 

No. 0080981, Fifth Third Center, 1 S. Main Street, Suite 1800, Dayton, Ohio 45402 
Attorneys for Defendant-Appellee, Mark Kosir 

NEIL E. KLINGSHIRN, Atty. Reg. No. 0037158, 4040 Embassy Parkway, Suite 280, 

Akron, Ohio 44333 

Attorney for Amicus Curiae, Ohio Employment Lawyers Association 

 . . . . . . . . . . 

FROELICH, P.J. 

{¶ 1} John Haight and Christopher Pence appeal from a judgment of the 

Montgomery County Court of Common Pleas, which found that they were not “employees” 

of Cheap Escape Company (d.b.a. JB Dollar Stretcher), as that term is defined in Ohio’s 

minimum wage laws, when they were working at the company as salespersons. 

Defendants-Appellees Robert Minchak, Joan Minchak, and Mark Kosir were Cheap 

Escape’s principals during the times relevant to this lawsuit. 

Background

{¶ 2} The Ohio Fair Minimum Wage Amendment (State Issue 2) was approved by 

Ohio voters in November 2006, and was incorporated into the Ohio Constitution at Article 

II, Section 34a (“Section 34a”). It went into effect on December 8, 2006. A central 

provision of the amendment was that “every employer shall pay their (sic) employees a wage 

rate of not less than six dollars and eighty-five cents per hour beginning January 1, 2007,” 

(emphasis added) with the amount to be adjusted annually thereafter pursuant to a formula 

tied to the consumer price index. The amendment did not require any action by the Ohio 

General Assembly to implement its protections, but it provided that “[l]aws may be passed 

to implement its provisions and to create additional remedies, increase the minimum wage 

rate and extend coverage of the section, but in no manner restricting any provision of the 

section * * *.” 

{¶ 3} Shortly after voter approval of Section 34a, the Ohio General Assembly 
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enacted R.C. 4111.14 and amended other portions of R.C. 4111.01 through R.C. 4111.10 

(H.B. 690) “in implementation of Section 34a of Article II, Ohio Constitution.” 

{¶ 4} This appeal presents the question whether the General Assembly’s actions, 

particularly its passage of R.C. 4111.14, imposed requirements or defined terms in a manner 

that conflicts with Section 34a and its express provision that laws passed for its 

implementation may extend, but not restrict, its coverage. If the statute clearly conflicts 

with the constitutional provision beyond a reasonable doubt, it cannot stand. State ex rel. 

Dickman v. Defenbacher, 164 Ohio St. 142, 146, 128 N.E.2d 58 (1955). 

Facts and Procedural History

{¶ 5} Haight and Pence are former salespersons of Cheap Escape, which published 

a coupon magazine and operated a website for electronic coupons; they sold advertising 

space in the magazine and website. There is some dispute as to how Cheap Escape’s 

salespersons were paid, but all or a substantial part of their pay was through commissions. 

Haight and Pence allege that they were paid less than the minimum wage during the time 

that they worked for Cheap Escape, and this fact does not appear to be in dispute. The parties 

disagree about whether Ohio law required Cheap Escape to pay Haight and Pence the 

minimum wage. 

{¶ 6} On February 6, 2012, Haight and Pence filed a complaint against Cheap 

Escape and the Minchaks seeking “monetary, declaratory, and injunctive relief.”1

 The 

complaint identified the claims as follows: failure to pay minimum wages under Section 34a, 

 1

Haight and Pence brought their minimum wage claim “on behalf of themselves and all similarly situated individuals,” 

as permitted under Section 34a. 
4

declaratory action regarding definition of “employee” under Ohio’s minimum wage laws, 

failure to tender pay (earned commissions) by regular payday (R.C. 4113.15), breach of 

contract in failing to pay all earned commissions, and quantum meruit (unjust enrichment). 

Cheap Escape filed a counterclaim for unjust enrichment. Haight and Pence thereafter 

filed two amended complaints. In pertinent part, the amended complaints sought class 

action certification, omitted Cheap Escape as a defendant, added Mark Kosir as a 

defendant-employer, added additional claims against the Minchaks and Kosir under Section 

34a and R.C. 4111.14 (which are not relevant to this appeal),2 and dropped the claims 

against Cheap Escape for breach of contract and unjust enrichment. Cheap Escape and the 

Minchaks thereafter dismissed their counterclaim for unjust enrichment. We will hereafter 

refer to the Minchaks and Kosir, collectively, as the owners of Cheap Escape. 

{¶ 7} On February 19, 2013, Haight and Pence filed a motion for a declaratory 

judgment on the constitutionality of the definition of “employee” contained in R.C. 

4111.14(B)(1), arguing that the resolution of this legal question would “go a long way in 

resolving the lawsuit.” On October 13, 2012, the trial court concluded that R.C. 

4111.14(B)(1) did not unconstitutionally contradict or restrict the meaning of the term 

“employee,” as set forth in Section 34a, and therefore that R.C. 4111.14(B)(1) was 

constitutionally valid. The court’s judgment included a statement that it was a final 

appealable order and Civ.R. 54 certification that there was no just cause for delay. 

 2

These additional claims included a challenge to the constitutionality of the written consent requirement contained in 

R.C. 4111.14(K)(2), failure to maintain and provide employee records, retaliation, and spoilation of evidence. 
[Cite as Haight v. Cheap Escape Co., 2014-Ohio-2447.]

{¶ 8} Haight and Pence appeal, raising two assignments of error, which we will 

address together.3

The trial court erred in declaring that R.C. § 4111.14(B)(1)’s 

“additional exemptions to the definition of ‘employee’” apply to actions 

brought under Ohio Const. Art. II, Sec. 34a. 

The trial court erred in declaring that R.C. § 4111.14(B)(1)’s 

definition of “employee” is constitutionally valid. 

{¶ 9} The pivotal question posed by the assignments of error is whether the trial 

court erred in concluding that the definition of an “employee” set forth in R.C. 

4111.14(B)(1) is not in conflict with the definition of an “employee” contained in Ohio 

Constitution, Article II, Section 34a, and that R.C. 4111.14(B)(1) permissibly implements 

Section 34a. This question turns on whether the definition of an “employee” in the statute 

is incompatible with the definition of that term in Section 34a. If the statute, or any part of 

it, conflicts with the constitutional provision, it is unconstitutional. 

{¶ 10} “It is difficult to prove that a statute is unconstitutional. All statutes have 

a strong presumption of constitutionality. * * * Before a court may declare unconstitutional 

an enactment of the legislative branch, ‘it must appear beyond a reasonable doubt that the 

legislation and constitutional provisions are clearly incompatible.’” Groch v. Gen. Motors 

Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 25, citing Defenbacher, 164 

Ohio St. 142, 128 N.E.2d 59, paragraph one of the syllabus. 

 3

The Ohio Employment Lawyers Association filed a brief of amicus curiae in support of Haight, Pence, and others 

similarly situated. 

“A legislative act is presumed in law to be within the constitutional power of 
6

the body making it, whether that body be a municipal or a state legislative 

body. * * * That presumption of validity of such legislative enactment cannot 

be overcome unless it appear that there is a clear conflict between the 

legislation in question and some particular provision or provisions of the 

Constitution. * * * The question, whether a law be void for its repugnancy to 

the Constitution, is, at all times, a question of much delicacy, which ought 

seldom, if ever, to be decided in the affirmative, in a doubtful case.” * * * [A] 

law should not be held unconstitutional on “slight implication” and “vague 

conjecture” but only where the court has a “clear and strong conviction” that 

the challenged law is incompatible with the Constitution. (Internal citations 

omitted.) 

N. Olmsted v. N. Olmsted Land Holdings, Ltd., 137 Ohio App.3d 1, 7, 738 N.E.2d 1 (8th 

Dist.2000), citing Defenbacher. 

{¶ 11} Section 34a defines “employee” and other terms as follows: 

As used in this section: “employer,” “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. 

The Fair Labor Standard Act, 29 U.S.C. 203, defines an “employee” as “any 
7

individual employed by an employer”; the definition set forth in this section is subject to 

certain exceptions, also set forth in that section, related to employees of a “public agency,” 

an agricultural employer’s family members, and volunteers for a public agency. 29 U.S.C. 

203(e). 

{¶ 12} R.C. 4111.14, enacted less than two months after Section 34a, 

acknowledges that its purposes are “in implementation of Section 34a of Article II, Ohio 

Constitution,” R.C. 4111.14(A), and to ensure that the wage rate required by Section 34a is 

paid to “Ohio employees, as defined in division (B)(1) of this section.” R.C. 4111.14(A)(1). 

 The statute also states that 

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. * * * 

R.C. 4111.14(B). 

{¶ 13} Although R.C. 4111.14(B)(1) acknowledges that Section 34a defines 

“employee” as having the “same meaning” as under the federal Fair Labor Standards Act, it 

also includes its own definition of “Employee”: 

“Employee” means individuals employed in Ohio, but does not mean 

individuals who are excluded from the definition of “employee” under 29 
8

U.S.C. 203(e) [the Fair Labor Standards Act] 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. 

R.C. 4111.14(B)(1). 

{¶ 14} 29 U.S.C. 213 contains exemptions to the minimum wage and maximum 

hour requirements of the Fair Labor Standards Act. These exemptions include “any 

employee employed in a bona fide executive, administrative, or professional capacity * * *,

or in the capacity of outside salesman * * *.” 29 U.S.C. 213(a)(1). Other exemptions 

include, very generally, summer camp employees, immediate family members working in 

agriculture, criminal investigators, and employees of fishing operations and small 

publications. 

{¶ 15} For purposes of this appeal, the parties seem to agree, and we will assume, 

that Haight’s and Pence’s positions with Cheap Escape fell within the definition of an 

“outside salesperson,” which is exempt from minimum wage requirements under 29 U.S.C. 

213. Thus, they would not have been entitled to the federal minimum wage under federal 

law. 

{¶ 16} The question, then, is whether Haight and Pence were entitled under Ohio 

law to be paid the Ohio minimum wage. They claim that they were, because the definition 

of an employee under Section 34a is very broad and does not exclude employees who are 

exempt from the federal minimum wage law under 29 U.S.C. 213. Haight and Pence further 

argue that, in enacting R.C. 4111.14(B)(1), the legislature impermissibly narrowed the 

definition of an “employee” set forth in Section 34a. The owners of Cheap Escape contend 
9

that the “meaning” of “employee” under the federal Fair Labor Standards Act, as that term is 

used in Section 34a, is broader than the “definition” of “employee” in Section 34a, and that 

the definition of employee contained in R.C. 4111.14(B)(1) does not clearly conflict with the 

constitutional provision. 

{¶ 17} Section 34a’s statement that “employee” and other terms have “the same 

meanings as under the federal Fair Labor Standards Act,” coupled with its statement that 

“[o]nly the exemptions set forth in this section shall apply to this section,” preclude 

interpreting Section 34a in the manner advocated by the owners of Cheap Escape. The 

exemptions from minimum wage requirements set forth in 29 U.S.C. 213 do not alter the 

definition of “employee” set forth in 29 U.S.C. 203. Rather, the exemptions provide that 

minimum wage (and maximum hour) requirements do not apply to certain categories of 

employees. In other words, the exemptions remove certain categories of employees from the 

minimum wage requirements set forth in other parts of the Fair Labor Standards Act, but they 

do not remove persons in those categories from the definition of an employee. Thus, the 

definition or “meaning” of an employee under the Fair Labor Standards Act is the broad 

definition contained in 29 U.S.C. 203(e) – “any individual employed by an employer” – 

rather than any narrower classification that applies for the provision of particular federal 

protections, such as wage and hour rules. 

{¶ 18} This conclusion is bolstered by the statement in Section 34a that “[o]nly the 

exemptions set forth in this section shall apply to this section.” This provision refutes the 

owner-employers’ argument that the legislature was permitted to graft exemptions to 

minimum wage requirements set forth in 29 U.S.C. 213 of the Fair Labor Practices Act onto 
10

the definition of an employee contained in 29 U.S.C. 203. 

{¶ 19} Moreover, by incorporating the exemptions to minimum wage and 

maximum hour requirements contained in 29 U.S.C. 213 into the R.C. 4111.14(B)(1) 

definition of “employee,” the legislature impermissibly narrowed Section 34a’s definition of 

an employee and its scope. Section 34a states: 

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. 

 Any deliberate or inadvertent narrowing of the definition of an employee covered by Section 

34a violates its express intent that legislative provisions implementing Section 34a may in no 

manner restrict its applicability. To the extent that R.C. 4111.14(B)(1) narrowed the 

definition of an employee and, thus, the scope of Section 34a, such action must be viewed as 

an impermissible restriction or modification – rather than a permissible “implementation” – 

of the constitutional provision. 

{¶ 20} Having found that there is a clear conflict between the definition of an 

employee in R.C. 4111.14(B)(1) and the definition of an employee in Section 34a, we must 

conclude that the legislative enactment is invalid. 

{¶ 21} In finding that R.C. 4111.14(B)(1) does not conflict with Section 34a, the 

trial court relied on Ellington v. East Cleveland, 689 F.2d 549 (6th Cir.2012). Ellington held 

that the Deputy Clerk of the East Cleveland City Council fell within the “legislative 
11

employee” exclusion from the definition of an employee under the federal Fair Labor 

Standards Act, R.C. 4111.14(B), and Section 34a. We note that the “legislative employee” 

exclusion upon which Ellington relies is contained in 29 U.S.C. 203, which defines an 

employee, rather than 29 U.S.C. 213, which sets forth classifications of employees who are 

exempt from the minimum wage requirements. Unlike a “legislative employee,” who is 

excluded from the definition of an employee under 29 U.S.C. 203(e)(2)(C)(V), an “outside 

salesperson” is an employee who is exempt from the minimum wage requirement under 29 

U.S.C. 213. Ellington does not address exempt employees, and the trial court does not 

discuss this distinction. 

{¶ 22} In Ellington, the court found that the Deputy Clerk’s claims under Section 

34a and R.C 4111.14(B) failed because, on their face, “[l]ike the FLSA, both § 34a and [R.C. 

4111.14(B)] limit the scope of the minimum wage and overtime provisions to individuals 

who qualify as ‘employees.’” The court did not analyze Section 34a or R.C. 4111.14(B); it 

merely noted that Section 34a and R.C. 4111.14(B) rely on the Fair Labor Standards Act’s 

definition of “employee.” Having concluded that the Deputy Clerk was not an employee 

(because he fell within the legislative employee exception) under 29 U.S.C. 203, the court 

likewise concluded that the Clerk was not an employee under Ohio law. Ellington is not 

controlling in considering the effect of the exemptions contained in 29 U.S.C. 213 on the 

Ohio definition of an employee. 

{¶ 23} The briefs engage in extensive argument parsing and attempting to 

distinguish between “exemption” and “exception” and between “meaning” and “definition.” 

We appreciate these discussions. However, the Ohio Constitution (Section 34a) applies to 
12

all “employees” as that term is used by the Fair Labor Standards Act, and the Fair Labor 

Standards Act defines “employee” as “any individual employed by an employer.” Therefore, 

the Ohio Constitutional provisions cover any individual employed by an employer. The fact 

that the Fair Labor Standards Act goes on to exempt from its provisions employees who are 

employed by an employer as outside salespeople is not part of the definition and cannot 

reasonably be interpreted as such. 

{¶ 24} We conclude that the legislature exceeded its authority to implement Section 

34a when it defined “employee” differently, and more narrowly, than that term is defined in 

Section 34a or in the Fair Labor Standards Act. 

{¶ 25} The assignments of error are sustained. 

{¶ 26} The judgment of the trial court will be reversed, and the case will be 

remanded to the trial court. 

 . . . . . . . . . . 

FAIN, J., concurs. 

WELBAUM, J., dissenting: 

{¶ 27} I very respectfully dissent. “In determining the constitutionality of an 

ordinance, we are mindful of the fundamental principle requiring courts to presume the 

constitutionality of lawfully enacted legislation. Further, the legislation being challenged 

will not be invalidated unless the challenger establishes that it is unconstitutional beyond a 

reasonable doubt.” (Citations omitted.) Arnold v. Cleveland, 67 Ohio St.3d 35, 38-39, 616 

N.E.2d 163 (1993). I am not convinced beyond a reasonable doubt that R.C. 4111.14(B) 

unconstitutionally conflicts with Article II, Section 34a of the Ohio Constitution. 
[Cite as Haight v. Cheap Escape Co., 2014-Ohio-2447.]

{¶ 28} Article II, Section 34a and R.C. 4111.14(B) both state that the term 

“employee” has the same “meanings” as under the federal Fair Labor Standards Act (FLSA). 

I agree that 29 U.S.C. 203(e)(1) of the FLSA does provides a very broad definition of 

employee as “any individual employed by an employer.” However, I also conclude that the 

overarching meaning of employees under the FLSA, including its exclusions and exemptions 

from eligibility, must be applied. 

{¶ 29} Notably, Article II, Section 34a of the Ohio Constitution uses the plural term 

“meanings,” which encompasses more than just a single definition. In addition, Section 34a 

does not confine itself only to the meaning of employee under 29 U.S.C. 203(e)(1). Instead, 

Section 34a states that “[a]s used in this section: ‘employer,’ ‘employee,’ ‘employ,’ ‘person’ 

and ‘independent contractor’ have the same meanings as under the federal Fair Labor 

Standards Act or its successor law * * *.” This reference includes the entirety of the act, 

not just a specific section. Under 29 U.S.C. 213(a)(1) of the FLSA, outside sales employees 

are excluded from eligibility to receive minimum wages, and they are properly excluded from 

coverage under Section 34a and R.C. 4111.14(B) as well. 

{¶ 30} My conclusion is also buttressed by the fact that Article II, Section 34a of 

the Ohio Constitution includes a specific exemption for “employees of a solely family owned 

and operated business who are family members of an owner.” This exemption is not one 

that was included in the FLSA. Logically, the drafters of Ohio’s constitutional amendment 

would have specifically mentioned the existing exemptions and exclusions in the FLSA if 

they believed that these categories were not already excluded from the meaning of 

“employees” for purposes of Section 34a. Exempting one specific category of employees 

from Ohio’s coverage, while failing to exempt other previously-excluded categories, makes 
14

no sense. 

{¶ 31} The challengers have framed a debatable issue, but have not proved an 

invalidating conflict beyond a reasonable doubt. I am not convinced beyond a reasonable 

doubt that R.C. 4111.14(B) unconstitutionally conflicts with Article II, Section 34a of the 

Ohio Constitution. Therefore, I would uphold the constitutionality of R.C.4111.14(B) and 

affirm the judgment of the trial court. 

{¶ 32} For the foregoing reasons, I very respectfully dissent. 

 . . . . . . . . . . 

Copies mailed to: 

Andrew Biller 

Frederick M. Gittes 

John P. Susany 

Patrick G. O’Connor 

Jennifer D. Brumby 

Michael P. Brush 

Neil E. Klingshirn 

Lori Wiseman 

Hon. Mary Katherine Huffman