In Brenneman v. Cincinnati Bengals, Inc., No. 1:14-CV-136, 2014 WL 5448864 (S.D. Ohio Oct. 24, 2014), the Plaintiff, a former Cincinnati Bengals cheerleader, filed a class and collective action alleging the Bengals paid her less than the minimum wage. She asserted claims under the Fair Labor Standards Act (“FLSA”), Article II § 34a of the Ohio Constitution known as the Ohio Fair Minimum Wage Amendment, and the Ohio Minimum Fair Wage Standards Act, Ohio Rev. Code 4111.14. Plaintiff filed her Ohio law claims as a class action under Federal Rule 23.  The Bengals moved to dismiss the Constitutional claim, arguing that the Plaintiff could not proceed directly under the Constitution but had to proceed under the implementing legislation, R.C. 4111.14. The Bengals also moved to dismiss the Rule 23 class claims because the implementing provision of the Minimum Wage Amendment provided for only opt-in collective actions for minimum wage violations.  The Court denied the Bengals’ motion to dismiss, effectively concluding that Ohio law permits employees alleging minimum wage violations to proceed with an opt-in collective action under the statute or an opt-out class action under the Constitution.

In November 2006 Ohio voters approved a ballot initiative amending the Constitution to add Article II § 34a. Section 34a raised Ohio’s minimum wage and indexed the minimum wage to inflation. It defined several key terms, including “employer” and “employee,” by reference to the FLSA’s definitions of the same. Section 34a also provided for a civil remedy: “An action for equitable and monetary relief may be brought against an employer by … an employee or person acting on behalf of an employee or all similarly situated employees … for any violation of this section or any law or regulation implementing its provisions….”

Section 34a also authorized the Ohio legislature to pass implementing legislation in support of Section 34a. The legislature responded with R.C. 4111.14. The statute created a civil right of action for employees complaining of, among other things, minimum wage violations. R.C. 4111.14(K) mirrors the FLSA’s collective action “opt-in” provision (see 29 U.S.C. § 216(b)), by requiring that “[n]o employee shall join as a party plaintiff in any civil action that is brought under division (L) of this section … unless that employee first gives written consent to become such a party plaintiff and that consent is filed with the court in which the action is brought.” R.C. 4111.14(K)(2).

Against this backdrop, the Court rejected the Bengals’ argument that Plaintiff could not mention an “opt-out” class action for minimum wage violation.

As an initial step, the Court held that section 34a was “self executing” and created a private right of action independent of R.C. 4111.14.  The court then held the plain language of Section 34a permitted Rule 23 class actions. Although Section 34a references the FLSA for some basic definitions, it pointedly does not reference the FLSA when describing actions available to aggrieved employees. Section 34a contains a clause stating that “[t]here shall be … no procedural, pleading or burden of proof requirements beyond those that apply generally to civil suits.” The court found this language dispositive in addressing the viability of a Rule 23 class action suit under Section 34a. Although the court’s decision did not invalidate R.C. 4111.14(K), the court held a plaintiff has a choice to proceed under the Constitution or under the statute.

The practical effect of Brenneman may end up being small in scope. Both section 34a, and R.C. 4111.14, apply only to minimum wage violations, and neither concerns overtime, which makes up the bulk of wage and hour litigation. And it remains to be seen whether Ohio courts will follow Brenneman, or whether they will interpret Section 34a and R.C. 4111.14 differently. But after Brenneman it is clear that Ohio employees can bring Rule 23 class action suits for minimum wage violations, without having to comply with the “opt-in” procedures required by 4111.14(K)(2).