One of the many voter initiatives on the ballot in Ohio is Issue 2, the “Ohio Fair Wage Amendment,” a proposal to enshrine an ever-increasing minimum wage in the Ohio state constitution. If it passes (and polls suggest it will by a large margin) the Ohio minimum wage will rise to $6.85 an hour in 2007, and increase with inflation thereafter.
There’s no need to rehash the economic arguments about the minimum wage here. (For those interested, see my NRO commentary on Issue 2 here). There are several other aspects of Issue 2 that are worth comment. First, for a constitutional amendment, Issue 2 is quite unweildy. Only a small portion of the thousand-plus-word amendment concerns wage rates. The rest details employer record-keeping, reporting, and disclosure requirements, and provides for a private cause of action against employers who fail to comply with the new law.
Issue 2 opponents have focused their efforts on portions of the amendment that they claim threaten workers’ privacy. A group called Ohioans to Protect Personal Privacy, for instance, argues that the amendment’s “fine print can also make your payroll records public: how much you make, when you worked, where you live.”
This charge is overstated. According to Ohio State’s Peter Swire OTPPP’s claims are “wrong” and display an “an ignorance of actual privacy law.” That said, I believe Issue 2’s non-wage provisions are still cause for concern.
Issue 2 requires employers to maintain payroll records for all employers for three years after their employment. Under the Amendment, “Such information shall be provided without charge to an employee or person acting on behalf of an employee upon request.” An individual “acting on behalf of an employee” is presumably someone like an attorney or authorized union representative, and herein lies the potential problem.
Another provision of Issue 2 provides that:
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.
This provision, read in conjunction with the rest of Issue 2, seems to create the possibility that an attorney retained by a current or former employee could bring a class-action suit on behalf of all “similarly situated employees,” and then seek the relevant employment records by claiming that they are acting on their behalf. Why would they do this? Perhaps to facilitate a litigation strategy or union organizing campaign.
This is not the only potential interpretation of Issue 2, but it is hardly an unreasonable one either. So, while some privacy-based complaints are overstated, there is a reasonable basis for concern — and reason enough, in my mind, why someone who would like to increase the minimum wage might still have misgivings about a constitutional amendment like Issue 2.