Defendants Hoffman and Gomes, in their respective governmental capacities, move for a dismissal of this in lieu action or for summary judgment. The corporate defendant, Samuel Stern & Sons, Inc., has been dropped from the case by consent of plaintiffs.
The action, brought and permitted to proceed as a class action for "Five Migrant Farmworkers and all others similarly situated," alleges essentially that there are approximately 1,000 migrant farm labor camps in New Jersey which are used to house nearly 11,000 workers who come to this State for agricultural work. Before 1975 the program
of enforcement for minimum standards of housing and sanitation have included pre-occupancy inspections as well as periodic inspections of all migrant labor camps in New Jersey.
Commencing in 1975 the State will no longer make pre-occupancy inspections of labor camps except as to those which recruit workers through the Division of Employment Services which result from the requirements of the Wagner-Peyser Act of 1933. 29 U.S.C.A. § 49 et seq. As a result, no such pre-occupancy inspections will be performed in 600 to 700 migrant labor camps in New Jersey.
It is further asserted that plaintiffs and the others similarly situate suffer and will in the future suffer from the failure to make such inspections as mandated by the provisions of the Seasonal Farm Labor Act, N.J.S.A. 34:9A-1 et seq. , and particularly 34:9A-20, which is partially quoted hereinafter.
Although they do not dispute the material allegations of fact, defendants and amicus curiae disagree with plaintiffs' thesis with respect to the present obligation on the part of the State to make pre-occupancy inspections. The basis for the disagreement rests on the issue of pre-emption by the Federal Government of the obligation, right and duty for such pre-occupancy inspections, i.e. , are the terms of N.J.S.A. 34:9A-20 superseded and rendered nugatory by the provisions of the Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C.A. § 651 et seq.?
The problem did not arise until April 1, 1975 because, pursuant to OSHA, the U.S. Secretary of Labor (Secretary) had approved a plan submitted by New Jersey, 29 U.S.C.A. § 672(g), in 1972, whereby the Federal Government provided 50% of the funds for administration and enforcement of the New Jersey program, including pre-occupancy as well as post-occupancy inspections of camps. Upon the failure of the State Legislature to enact required legislation to continue the plan in force, both the Secretary
and defendant Hoffman, as the Commissioner of Labor and Industry, mutually agreed that the plan must become ineffective, leaving the parties to carry out only the obligations imposed otherwise. Consequently, the Commissioner withdrew regulations pertaining to pre-occupancy inspections.
Plaintiffs submit that N.J.S.A. 34:9A-20 still requires the State to make such pre-occupancy inspections. This statute partially reads as follows:
Each person employing any person to work in or at camps * * * shall apply, not later than 60 days prior to the opening of any such camp * * * to the bureau (of migrant labor) for a certificate of compliance of such camp with the requirements of this act. * * * The commissioner (of Labor and Industry) shall cause each camp to be inspected within 45 days of receipt of an application * * *. If the commissioner finds from the application and inspection that a camp fully complies with the requirements of this act , he shall issue a certificate to that effect. No camp shall be maintained, operated, used or occupied until the commissioner shall have issued therefor a certificate as required by this section; provided, that if no inspection of a camp has been made within 45 days of the receipt of an application for a certificate of ...