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New Jersey State Hotel-Motel Association v. Male

Decided: March 25, 1969.

NEW JERSEY STATE HOTEL-MOTEL ASSOCIATION, A CORPORATION NOT FOR PROFIT OF THE STATE OF NEW JERSEY, ET AL., PLAINTIFFS,
v.
RAYMOND F. MALE, COMMISSIONER, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, DEFENDANT



Sullivan, Foley and Lewis. The opinion of the court was delivered by Sullivan, S.j.a.d.

Sullivan

This is an action under R.R. 4:88-10 brought by the New Jersey State Hotel-Motel Association and its individual members to review the validity of Wage Order No. 3, governing employment in hotel and motel occupations, promulgated by the defendant Raymond F. Male, Commissioner, Department of Labor and Industry, State of New Jersey, on May 7, 1968 and effective November 6, 1968. The action also seeks to review the validity of certain interim administrative regulations which embodied the provisions of Wage Order No. 3 and which operated until the order became effective. The wage order and regulations fix a minimum wage rate with overtime provisions for employees in hotel and motel occupations, including employees under the age of 18 years, and also provide that cash wages shall not fall below a specified percentage (depending on the occupation) of the minimum wage rate per hour after allowances are made for gratuities, food and lodging.

It is unnecessary to review the history of minimum wage legislation in this State. Suffice it to note that the present law (New Jersey State Wage and Hour Law) provides for a minimum rate of pay and an overtime rate applicable to employers and employees in the State, with certain exceptions. In addition, the law empowers the Commissioner to issue a wage order establishing minimum fair wage rates for employees in a particular occupation or occupations. The law outlines the procedure to be followed before a wage order may be issued. This includes the appointment of a

wage board to make recommendations to the Commissioner. The Commissioner is empowered to issue interim administrative regulations to be operative until a wage order has been promulgated and becomes effective.

It is first contended by plaintiffs that since the wage board did not file its report within the time limitation set forth in the law (60 days of its organization), its attempted report was a nullity and the wage order and the administrative regulations based on the report must fail.

It is also argued that the Commissioner was required by the law to approve or disapprove the wage board's report within ten days after the public hearing on the recommendations contained in the report, and that his failure to do so invalidates the wage order and the regulations.

We see no merit to these contentions. The time limitations provided in the law are clearly intended to be directory only and not jurisdictional. Cf. Howell Tp. v. Division of Tax Appeals, 99 N.J. Super. 11 (App. Div. 1968).

The omission of the wage board and the Commissioner (assuming the Commissioner was required to act on the report within ten days after the public hearing) to meet the time limitations did not invalidate their actions. The only sanction provided in the act for failure of the wage board to submit its report within 60 days of its organization is: "the commissioner may constitute a new wage board." N.J.S.A. 34:11-56 a 14. The Commissioner's jurisdiction over the subject matter is admitted. No prejudice is asserted to flow from the alleged delays. The law is social legislation designed to correct abuses in employment. It would be a miscarriage of justice to invalidate the Commissioner's efforts to remedy abuses in employment in hotel and motel occupations on technical grounds unrelated to the merits of the question.

Plaintiffs also argue that the Commissioner had no power to issue a wage order or regulations, providing for overtime pay to hotel employees, or extending coverage to persons under the age of 18, because the Legislature had

provided otherwise in the enabling law. We do not agree. Concededly, the provisions of the law establishing a minimum wage with overtime provisions, applicable generally throughout the State, contain certain exceptions. Thus, it is provided that the minimum wage rates "fixed in this section" shall not be applicable to (among others) persons under the age of 18. The law also provides that "the provisions of this section" for overtime pay shall not apply to (among others) hotel employees. N.J.S.A. 34:11-56 a 4. However, this does not circumscribe the Commissioner's power via a wage order and regulations to establish minimum fair wage rates covering employment in a particular occupation or occupations.

Under N.J.S.A. 34:11-56 a 13 the wage board may recommend the "establishment" of an overtime rate in the particular occupation for which the wage board was appointed. Since overtime is provided for under N.J.S.A. 34:11-56 a 4 as to all occupations, save those specifically excepted, manifestly a wage board recommendation for the "establishment" of an overtime rate would have ...


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