Cleveland Law Library Weblog

Correction to Prior Post: Ohio Dept. of Commerce Says Ohio Min Wage Applies to Farm Workers

Our prior post Ohio Dept. of Commerce Says Ohio Min Wage Applies to Farm Workers is corrected to read as follows:

Home health care, amusement park and some farm workers are getting the state's new, higher minimum wage, enacted by the 125th General Assembly's HB 690. The Republican legislators of the 125th General Assembly felt that HB 690 excluded home health care, farm and amusement park workers from the new Ohio minimum wage. The Ohio Department of Commerce disagreed, finding that the Ohio minimum wage law does apply to these groups.  See Workers Exempted in Bill to get Wage Hike by Associated Press, The Plain Dealer, Apr. 27, 2007; Wage Increase Broadly Applied by Alan Johnson and Jonathan Riskind, Columbus Dispatch, Apr. 26, 2007.

HB 690 states as follows:

(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.

ORC 4111.14(B)(1) as enacted by HB 690. 

Robert Kennedy, the agency's Division of Labor & Worker Safety superintendent, told The Columbus Dispatch "'We're interpreting that you've got to be in both of those [state and federal statutes] to be exempted from Ohio's minimum wage,' . Workers Exempted in Bill to get Wage Hike by Associated Press, The Plain Dealer, Apr. 27, 2007. Thus, according to the Ohio Dept. of Commerce, the following employees are exempt:  (1) Employees exempt under  29 USC 203(e) (ie. certain government employees and volunteers ) and (2) Employees exempt under 29 USC 213 (ie. farm workers, home health aids and amusement park workers) but only if the 29 USC 213 employee is also specifically exempt under the definition of employee in ORC Chapter 4111.  See Ohio Announces the New Minimum Wage Exemptions by Neil Klingshirn, My Employment Blogger, Apr. 28, 2007.

"Employee" is defined in Chapter 4111 by ORC 4111.14(B)(1) as quoted above, and also by ORC 4111.14(B)(2), which excludes volunteers.   Employee is further defined by ORC 4111.03(E)(1) to exclude federal government employees,  babysitters, newspaper deliverers, executives and professionals, and other catagories.  No where does Chapter 4111 specifically exclude agricultural, home health aid or amusement park workers, so the Ohio minimum wage statute applies to them.

Senator Steven Stivers feels the Department of Commerce interpretation is incorrect because ORC 1.02(F) states,

"As used in the Revised Code, unless the context otherwise requires:

......

(F) “And” may be read “or,” and “or” may be read “and” if the sense requires it."

The AFL-CIO dropped its plans for a lawsuit to have HB 690 held invalid.  They are satisfied that the minimum wage law is being applied to farm workers, amusement park workers and home health aids.

For a more detailed explanation, see: Ohio Announces the New Minimum Wage Exemptions by Neil Klingshirn, My Employment Blogger, Apr. 28, 2007.  This article has a link to  the Department of Commerce's Minimum Wage Poster, which lists all the exemptions.  Also see: See Ohio Minimum Wage Laws on the Division's website.

See our prior post:  Taft Signs Bill Implementing Minimum Wage But Exempting Some Workers.

Our prior post Ohio Dept. of Commerce Says Ohio Min Wage Applies to Farm Workers is corrected to read as follows:

Home health care, amusement park and some farm workers are getting the state's new, higher minimum wage, enacted by the 125th General Assembly's HB 690. The Republican legislators of the 125th General Assembly felt that HB 690 excluded home health care, farm and amusement park workers from the new Ohio minimum wage. The Ohio Department of Commerce disagreed, finding that the Ohio minimum wage law does apply to these groups.  See Workers Exempted in Bill to get Wage Hike by Associated Press, The Plain Dealer, Apr. 27, 2007; Wage Increase Broadly Applied by Alan Johnson and Jonathan Riskind, Columbus Dispatch, Apr. 26, 2007.

HB 690 states as follows:

(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.

ORC 4111.14(B)(1) as enacted by HB 690. 

Robert Kennedy, the agency's Division of Labor & Worker Safety superintendent, told The Columbus Dispatch "'We're interpreting that you've got to be in both of those [state and federal statutes] to be exempted from Ohio's minimum wage,' . Workers Exempted in Bill to get Wage Hike by Associated Press, The Plain Dealer, Apr. 27, 2007. Thus, according to the Ohio Dept. of Commerce, the following employees are exempt:  (1) Employees exempt under  29 USC 203(e) (ie. certain government employees and volunteers ) and (2) Employees exempt under 29 USC 213 (ie. farm workers, home health aids and amusement park workers) but only if the 29 USC 213 employee is also specifically exempt under the definition of employee in ORC Chapter 4111.  See Ohio Announces the New Minimum Wage Exemptions by Neil Klingshirn, My Employment Blogger, Apr. 28, 2007.

"Employee" is defined in Chapter 4111 by ORC 4111.14(B)(1) as quoted above, and also by ORC 4111.14(B)(2), which excludes volunteers.   Employee is further defined by ORC 4111.03(E)(1) to exclude federal government employees,  babysitters, newspaper deliverers, executives and professionals, and other catagories.  No where does Chapter 4111 specifically exclude agricultural, home health aid or amusement park workers, so the Ohio minimum wage statute applies to them.

Senator Steven Stivers feels the Department of Commerce interpretation is incorrect because ORC 1.02(F) states,

"As used in the Revised Code, unless the context otherwise requires:

......

(F) “And” may be read “or,” and “or” may be read “and” if the sense requires it."

The AFL-CIO dropped its plans for a lawsuit to have HB 690 held invalid.  They are satisfied that the minimum wage law is being applied to farm workers, amusement park workers and home health aids.

For a more detailed explanation, see: Ohio Announces the New Minimum Wage Exemptions by Neil Klingshirn, My Employment Blogger, Apr. 28, 2007.  This article has a link to  the Department of Commerce's Minimum Wage Poster, which lists all the exemptions.  Also see: See Ohio Minimum Wage Laws on the Division's website.

See our prior post:  Taft Signs Bill Implementing Minimum Wage But Exempting Some Workers.

Smoking Complaint Database

Business owners can see if a citizen complaint was filed against them for violation of the smoking ban, during the period of Dec. 7, 2006 and Apr. 24, 2007 by visiting  Cincinnati.com Smoking Complaints Datacenter.   The smoking ban was officially in effect as of Dec. 7, 2006, but not being enforced due to lack of regulations.  The Department of Health says that these complaints will not count against businesses once enforcement begins.   

Lawsuits Filed to Stop Smoking Ban

Two groups representing bar and restaurant owners have filed suit to try and stop the Ohio smoking ban regulations from going into effect.  The Buckeye Liquor Permit Holders Association and the Ohio Licensed Beverage Associations filed actions in Hamilton and Franklin County common pleas courts respectively.  These organizations claim that the exemption for private clubs violates their equal protection rights.  The Cincinnati lawsuit also alleges that the smoking ban violates bar and restaurant owners' right to use their property as they see fit.  See Ohio's Smoke-Free Law Update by Chuck Kallendorf, Cincinnati Law Library Blog, Apr. 26, 2007, citing 2 Court Actions Filed to Bar Ban on Smoking from Taking Effect, by Toledo Blade, Apr. 14, 2007.  The Cincinnati Law Library Blog article contains links to the docket in each case. 

Cleveland Passes Stricter Curfews, Bans Spray Paint Sales to Minors

Cleveland City Council voted for stricter curfews for minors.  According to a Sun News article,

"Currently, the nightly curfew for children is darkness to dawn for ages 12 years and younger, 11 p.m. to 5 a.m. for children 13 to 16 years old, and midnight to 5 a.m. for 17-year-olds.

The biggest change will be for 13- and 14-year-olds, who will have to remain indoors from 9:30 p.m. to 6 a.m. The curfew is 11 p.m. to 6 a.m. for 15- and 16-year-olds; and midnight to 6 a.m. for 17-year-olds. Police can cite parents and legal guardians with a minor misdemeanor, punishable by a $100 fine."

Curfew Law Could Help Provide Quiet by Ken Prendergast, West Side Sun News, Apr. 26, 2007.  There are some exceptions to the law, including when the minor is accompanied by a parent or guardian, when the child is en route from a job or when the parent has initiated juvenile court proceedings against the minor.  See  City Record, April 25, 2007 at page 685, page 13 of the pdf document.  The official text of amended Cleveland Codified Ordinance 605.14 has not yet appeared in  the City Record, but will be posted on this blog when it does so appear.

City Council also passed new ordinances 623.101 and 623.103, which prohibit the sale of spray paint to minors. See  City Record, April 25, 2007 at page 685, page 13 of the pdf document.  The official text of these new Cleveland Codified Ordinances has not yet appeared in  the City Record, but will be posted on this blog when they appear.

Federal Sentencing Commission Votes for Guideline Amendments

The U.S. Sentencing Commission voted on amendments to sentencing guidelines, but the text of the guidelines as approved by the commission are not yet available on the web.  The following are excerpts from the U.S. Sentencing Commission Votes to Amend Guidelines for Terrorism Sex Offenses, Intellectual Property Offenses and Crack Cocaine Offenses, Sentencing Commission Press Release, Apr. 27, 2007:   
At its April 18, 2007 meeting, the Federal Sentencing Commission "voted to promulgate and submit to Congress sentencing guideline amendments regarding offenses that include terrorism, sex offenses, and intellectual property offenses. It also took action to address sentencing disparities resulting from federal cocaine sentencing policies." ....

"[T]he Commission also announced its intention to form a standing victims advisory group to provide the Commission with input regarding federal crime victimization."  .....

"The text of the Commission’s amendments and its accompanying 2007 report to Congress, Cocaine and Federal Sentencing Policy, will be available in the coming weeks on the Commission’s website, www.ussc.gov." 

In other sentencing guideline news, "Pursuant to section 4 of the Telephone Records and Privacy Protection Act of 2006 (the "Telephone Act"), Pub. L. 109-476, the Commission hereby gives notice of a temporary, emergency amendment to the sentencing guidelines, policy statements, and commentary. This notice sets forth the temporary, emergency amendment and the reason for amendment (72 FR 20576-20577). "  See Sentencing Commission's Homepage.

Bill Requires More Experience for Judicial Candidates

HB 173 , if passed, would require judges to have more years of experience.  Instead of the current six year requirement, common pleas judges must have ten years of experience, appellate judges must have twelve years of experience and Ohio Supreme Court judges must have fifteen years of experience.  See HB 173 modifications to ORC 2301.01; 2501.02 and 2503.01.   

The bill would also increase judicial salaries.  Ohio judges' salaries would be based upon a percentage of federal judges' salaries, in the corresponding court level.  Moyer Asks Lawmakers to Increase Judges' Pay by Reginald Fields, The Plain Dealer, Apr. 26, 2007. 

New Bills of Interest

These selected bills of interest can be viewed on the Ohio General Assembly's Search for Legislative Information. 

HB 170 - INSURANCE COVERAGE FOR AUTISM -Prohibit health insurers from excluding coverage for autism

HB 171 - ISSUANCE OF PROFESSIONAL LICENSES - To revise the laws governing issuance of certain professional licenses

HB 172 - SEALING OFFICIAL COURT RECORDS - Require the sealing of the official records of a person who is found not guilty of an offense

HB 173 - JUDGES - To increase compensation for justices and judges and to change qualifications for all judges.  See our post: Bill Requires More Experience for Judicial Candidates

HB 174 - TELECOMMUNICATION TOWERS - Relative to township and county telecommunication tower zoning authority

HB 177 HORSE RACING PERMITS  - Allow same person/corporation be issued not more than two horse racing permits for tracks in Ohio

HB 178 - HEALTH INSURANCE/CHILD SUPPORT - To define the reasonable cost of health insurance coverage in child support orders

HB 179 - WORKPLACE INJURY EXPENSES - Require a health insurer and allow employee to pay for services provided to care for an employee's workplace injury or occupational disease while Workers' Compensation claim is pending and then to require Workers' Compensation reimburse those expenses.

HB 181 - SCHOOL RECORDS-MISSING CHILDREN - To require public and nonpublic schools to mark the records of students identified as missing children and to notify law enforcement of requests for those records.

HB 183 - ASSAULT OF HEALTHCARE WORKER - To increase the penalties for assault of a healthcare worker or a school employee

HB 184 - ELECTED OFFICIALS REVIEW COMMISSION - Establish the Elected Officials Review Commission to study the adequacy of the salaries of elected officials relative to the duties these officials are required to perform.

HB 185- NURSES - Regarding tuition reimbursement, tax credits, and mandatory overtime for nurses and nurses aides.

HB 186 - OHIO HEALTH CARE PLAN - Establish and operate the Ohio Health Care Plan to provide universal health care coverage to all Ohio residents

HB 187 - TOWING COMPANY REGULATIONS - To require the Public Utilities Commission to regulate towing companies

HB 189 - DISCRIMINATION - Prohibit discrimination under the Ohio Civil Rights Commission Law and certain other laws on the basis of military status.

HB 191 - OBSCENE MATERIAL-CRIMINAL PROCEEDING - Require that in a criminal proceeding any obscene material involving a minor remain in the custody and control of the prosecuting attorney or court.

SB 152 - BICYCLE OPERATORS - Require bicycle operators and passengers under 18 to wear protective helmets when bicycle is operated on a roadway and to establish the Bicycle Safety Fund to assist low-income families in the purchase of bicycle helmets.

SB 153 - ACCIDENT MINIMUM FINANCIAL LIMITS - Increase the minimum financial limits for bodily injury for one person injured in an accident, for all bodily injuries in one accident, and for the property damage maximum in one accident.

SB 154 - NONPUBLIC RESTROOMS- Require certain establishments to allow customers with eligible medical conditions to use the retail establishment's restrooms that are not usually available to the public

SB 155 - CHAMPAIGN COUNTY COURT - Create a Domestic Relations-Juvenile-Probate Divison of the Champaign County Court of Common Pleas

Traffic Stop Based on Silent 911 Call Improper

US v. Cohen (Apr. 13, 2007), Case No. 06-5594:  The Sixth Circuit Court of Appeals affirmed the Western District of Kentucky's decision granting defendant's motion to suppress evidence gained through a traffic stop.  Police stopped defendant's vehicle because he was driving near a home where a silent 911 call had been made.  To view the opinion:  Download 07a0135p-06.pdf

Title Company Kickback Case Settles

Tower City Title settled a federal class action lawsuit filed by Housing Advocates, a non-profit corporation.  Housing Advocates claimed that Tower City title violated RESPA by paying illegal kickbacks to mortgage brokers, in exchange for business referrals.  The complaint also alleged negligent misrepresentation, violation of the Ohio Consumer Sales Practices Act and civil conspiracy.  Tower City maintains that they were paying the mortgage brokers for marketing services, and the deals were legal.  Housing Advocates is investigating other title companies for similar violations.  Source:  Title Firm Settles Suit on Broker Payments   by Thomas Ott, The Plain Dealer, Apr. 27, 2007. 

The case is Shahan et al v. Tower City Title Agency, Inc. et al, Northern District of Ohio Case No. 1:05-cv-01983.  Former Cuyahoga County Common Pleas Court Judge Burt W. Griffin served as mediator.  The documents in the case, including motions for summary judgment, can be viewed at the ND Ohio ECF System. To view the complaint: Download housing_adv_complaint . 

Court Challenge to Maple Heights Parental Responsibility Ordinance

A mother charged under the Maple Heights parental responsibility ordinance, Ordinance No. 648.20, moved to have the ordinance declared unconstitutional.  Thelma Ephraim was charged under the ordinance because her son was charged with carrying a concealed weapon, resisting arrest and failure to comply with a police order.  In her motion to dismiss the charges against her, Ephraim argued that the law is vague and overbroad.  Additionally, she asserts that the law violates her due process rights because it interferes with a parent's right to raise their children and the law fails to pass the strict scrutiny test.  She also argues that the ordinance violates due process because it preempted by state laws, specifically ORC 2151.03 pertaining to neglected children and ORC 2919.22 creating the criminal offense of child endangering.

A written decision is expected after the end of June. 

The motion to dismiss and other documents in the case can be viewed at the Garfield Heights Municipal Court Docket Search.  The case is Maple Heights v. Ephraim, Garfield Heights Docket No. 0700016.  To view the documents, you have to download free software: DjVu Browser Plugin .  When you open the document, you may have to click the arrow at the end of the toolbar to get a "page forward" icon. 

To see the Maple Heights ordinance Download maplehtsordparental.pdf.

Sources:  Corrections and Clarifications , The Plain Dealer, Apr. 27, 2007; Parent Challenging New Maple Heights Law by Rachel Dissel, The Plain Dealer, Apr. 27, 2007; Elders Liable for Teens' Actions by Susan Vinella, The Plain Dealer, Apr. 26, 2007. 

See our prior posts:  Maple Heights Parents May have to Pay for Child's Crimes, April 19, 2006; Update to Maple Heights Parental Responsibility Ordinance, Jan. 23, 2007.