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In Haight v. Cheap Escape Co., 2014-Ohio-2447, the Ohio Second District Court of Appeals held that outside salespeople paid on commission were employees as defined by Article II, Section 34a of the Ohio Constitution.  This section states:

As used in this section: “employer,” “employee,” “employ,” “person” and “independent contractor” have the same meanings as under the federal Fair Labor Standards Act …

The Fair Labor Standard Act, 29 U.S.C. 203, defines an “employee” as “any individual employed by an employer”, with some exceptions that do not apply here.

An Ohio statute, RC 4111.14(B)(1), stated:

“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) [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.

Outside salespeople are exempt from minimum wage under 29 U.S.C. 213.

The Second District held that the Ohio Statute violates the Ohio Constitution by narrowing the definition of employee.  Article II, Section 34a of the Ohio Constitution states:

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.

See Porter Wright Employer Law Report: Appellate Court throws exemptions to minimum wage laws in Ohio out the window

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