What should an Ohio home health care employer do? Under the minimum wage implementing legislation, she can pay the new Ohio minimum wage or claim an exemption for home health care workers created by the minimum wage implementing legislation. Assuming that she prefers not to pay the minimum wage, which is the wiser choice?
Generally speaking, legislation is presumed to be constitutional. In this case, however, the constitutional problems appear on the face of the law, which takes the minimum wage away from tens of thousands of Ohio workers who would otherwise have received it. For this reason, I believe that the exemption is not contitutional and caution employers against relying on it.
However, I am just one attorney. Maybe I have it wrong. So I sought out what other attorneys are saying to see if competent employment counsel have gone on record to defend the constitutionality of the legislative exemptions. Here's what I found:
The Columbus law firm of Bricker & Eckler wrote:
The proponents of the Amendment have indicated that they intend to challenge the constitutionality of this legislation when it does become effective (or before). For at least the next several months, therefore, there will be much uncertainty surrounding these issues and employers should continue to stay tuned.
Bricker & Eckler thus share my concern about the unconstitutionality of this law. However, an attorney from the firm of
Schottenstein, Zox & Dunn wrote:
the new legislation has made clear that employers and employees exempt from the minimum wage requirements under the Fair Labor Standards Act are also exempt under the new state law.
Encouraged that I found an attorney with more insight into this matter than me, I wrote to the author of this article, attorney
Paul Bittner, and asked if he would share the reason he believed that the minimum wage legislation exemptions were constitutionally sound. Mr. Bittner replied that:
Our article is not intended to resolve the constitutionality of this provision of HB 690, any other provision of HB 690 or for that matter, the constitutionality of Article II, Section 34a itself.
While I understand that there will undoubtedly be many opportunities to further debate HB 690, our article was certainly not intended to be anything more than an informational piece on the contents of the General Assembly’s enactment.
We hope our readership will be attentive to this trend in law and seek counsel regarding their rights and responsibilities including the risks and benefits, related to it. Some employers may wish to vigorously follow the literal language in HB 690; others may wish to be extremely cautious and wait and see how courts may interpret the constitutionality of its exemption provisions.
This is hardly a ringing endorsement of the implementing legislation's constitutionality.
At long last, I found what might pass for a defense of the constitutionality of the implementing legislation in the Ohio Legislative Services Commission's analysis of HB 690:
Section 34 of Article II, Ohio Constitution, . . . states that "laws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employees; and no other provision of the constitution shall impair or limit this power," which Section 34a made no attempt to amend, repeal, or otherwise modify.
In other words, the argument is that the constitutional right to pass general minimum wage laws gives the legislature the power to take away a more specific, constitutional ly required, minimum wage.
I don't buy it. Apparently, the Legislative Services Commission was not entirely sold on the argument either, concluding with this comment:
Section 34a stipulates that the section must be liberally construed in favor of its purposes. The section specifies that laws "may be passed to implement 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 . . . ." If a court would find that the bill's provisions are considered a restriction on Section 34a, then the bill may be contrary to Section 34a.
So there it is. Weeks after passage of the legislation much has been written about it, but not in a defense of its constitutionality. Consequently, I suggest that the employer faced with the choice of paying the new minimum wage or relying on the constitutionality of the legislative exemptions should avoid relying on the exemptions.
