COLUMBUS, Ohio — News reports that farmers are exempt from Ohio’s new minimum wage requirement are inaccurate, according to the Ohio Farm Bureau Federation.

The majority of Ohio’s farmers will be required to pay the new minimum of $6.85 per hour effective Jan. 1, 2007. Only small farms, which use a few workers, will be exempt.

“The farm community will be complying with what voters intended when they passed Issue 2 last November,” said John Wargowsky, OFBF’s director of labor services and policy.

Broad statements that farmers are exempt have been reported following the General Assembly’s passage of H.B. 690, which codifies the constitutional change approved by voters. The erroneous reports likely are due to incomplete understanding of the new law according to Wargowsky.

When asked to clarify whether Ohio’s new minimum wage law applies to Ohio farmers, Akron, Ohio, attorney Neil Klingshirn of Fortney and Klingshirn law office agreed with OFBF’s assessment.

“First, does the new Issue 2 minimum wage cover them? The answer is ‘yes,’ because they fall within the definition of an ‘employer’ and their employees are not exempted from the Issue 2 minimum wage - unless they are family members of a family-owned business,” Klingshirn said. “Second, does any other law exempt them from the minimum wage created by Issue 2? The answer is ‘no.’”

Although H.B. 690 implements Issue 2’s minimum wage and purports to add all of the exemptions contained in the federal minimum-wage law, Klingshirn said Issue 2 specifically states that the General Assembly cannot enact any law that restricts the rights created by Issue 2.

“Since the new exemptions restrict the rights of the exempted employees, it is my opinion that the exemptions are unconstitutional and void,” said Klingshirn, the driving force behind the creation of the online resource MEL – My Employment Lawyer.

On this site - www.myemploymentlawyer.com/serendipity/archives/22-Why-Ohios-current-Minimum-Wage-Legislation-is-Unconstitutional.html - Klingshirn discusses why he believes H.B. 690 is unconstitutional, examines the new minimum wage law in the context of a summer camp as an employer, and discussed how a small business with less than $250,000 in gross revenues - one of the supposed exemptions from the new law - will be covered by Issue 2.

“This law is exceptionally complicated,” Wargowsky said. “It is extremely important that factual information be provided so that farmers and their employees understand how they will be affected.”

And increased pay rates are not the only implication for Ohio farmers.

“There are some significant record-keeping and other compliance issues farmers will have to deal with,” Wargowsky said. “Farm Bureau’s goal is to help farmers fulfill their obligations and provide workers with good employment opportunities.”

Some of these additional administrative requirements include that the employer keep a record for three years after each employee’s last day of work of the employee’s name, address, occupation, pay rate, hours for each day worked and each amount paid to an employee.

“If an employer is exempt from the minimum-wage payment of the law, the employer is also exempt from the record-keeping requirement,” Klingshirn said. “Again, however, be aware that H.B. 690 supposedly exempts from the record-keeping requirement those employees who are exempt from federal overtime requirement. As with the exemptions from the minimum wage itself, the H.B. 690 exemptions from the record-keeping requirements are probably unconstitutional and void.”

For those in violation of the new law, penalties are tough. Employers who fail to comply with the new law may face complaints by employees, persons acting on their behalf and/or any other interested party to the state. Under the law, Ohio must promptly investigate and resolve the complaint.

In addition, the state can initiate its own investigations. And finally, the state, an employee or person acting on behalf of an employee or all similarly situated employees can initiate a lawsuit.

If an employer is found to be in violation of the minimum wage law through a lawsuit, within 30 days the employer is required to pay the employee’s back wages, pay damages equal to an additional two times the back wages and pay the employee’s costs and reasonable attorney’s fees.

“Given this, the Ohio Farm Bureau and your publication are doing Ohio’s farmers - like my dad and brother - a real service by alerting them to this issue,” Klingshirn said told Farm World. “To summarize, published reports not withstanding, Ohio farmers should proceed at their own risk if they do not pay $6.85 an hour for hours worked after January 1, 2007. In my opinion, Ohio farmers are not exempt from the minimum wage.”

It was just last January that Ohio employers made the adjustment to a newly increased minimum wage of $5.15 per hour. And the implications of the new legislation will not end in the foreseeable future. In addition to the increase to $6.85 taking effect this January, the new law specifies an annual inflation-based increase. For example, if inflation in 2007 is 6 percent, the minimum wage will increase to $7.26 in 2008.

OFBF will soon have a comprehensive fact sheet on both the wage requirements and administrative obligations enacted by the new law available on their website at www.ofbf.org

This farm news was published in the Jan. 3, 2007 issue of Farm World, serving Indiana, Ohio, Illinois, Kentucky, Michigan and Tennessee.