[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