Pursuant to R. 3:23-8(a)(3), the State appeals from an order of the Dumont Municipal Court dismissing its complaint against Frech Funeral Home, Inc. for its failure to pay a trainee the overtime mandated by N.J.S.A. 34:11-56a4. The novel legal question raised by this appeal is whether, for purposes of N.J.S.A. 34:11-56a4, a mortician's trainee is employed in a bona fide professional capacity and thereby excepted from the provisions of that statute.
Before reaching the substantive issue of statutory construction, the court must address two threshold questions. First is the determination of the applicable statute of limitations, and second is whether defendant is entitled to a trial by jury. The resolution of both these questions depends upon whether a violation of the overtime statute is a disorderly persons offense under the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 et seq., or a misdemeanor under N.J.S.A. 2A:1-1 et seq.
The factual context in which all of these questions are raised is as follows. On January 26, 1981 the Department of Labor and Industry, Office of Wage and Hour Compliance, filed a
79-count complaint in the Dumont Municipal Court against Frech Funeral Home, Inc. (Frech), alleging that it violated N.J.S.A. 34:11-56a4*fn1 by failing to pay its trainee Ken Barker, 1 1/2 times his regular hourly rate for each hour in excess of 40 hours, during the entire period of Barker's employment. Barker's employment lasted from the week ending August 5, 1977 to the week ending June 7, 1979. Notwithstanding the admission by defendant of the factual allegations made by the State, defendant asserts that it is not guilty of a misdemeanor as provided in N.J.S.A. 34:11-56a22.
The Municipal Court, without addressing the merits, dismissed the complaints as time-barred. The judge regarded the one-year statute of limitations under N.J.S.A. 2C:1-6 b(2) as controling, rather than the five-year statute of limitations under N.J.S.A. 2A:159-2. The State has appealed.
I. Statute of Limitations
Defendant relies on N.J.S.A. 2C:1-4c, which states in pertinent part that
Insofar as any provision outside the code [New Jersey Code of Criminal Justice] declares an offense to be a misdemeanor when such offense specifically provides a maximum penalty of 6 months imprisonment or less, whether or not in combination with a fine, such provision shall constitute a disorderly persons offense.
Based on this provision of the Code, defendant argues that since the maximum penalty for violation of N.J.S.A. 34:11-56a4 does not exceed six months, the offense charged should be viewed as a disorderly persons offense subject to the concomitant
one-year statute of limitations set forth in N.J.S.A. 2C:1-6 b(2). Thus, it contends that the complaints filed January 26, 1981 must be dismissed since the date of the last alleged illegal activity was June 7, 1979.
The underlying flaw in this analysis is that it ignores the Code's threshold rules of construction as provided in N.J.S.A. 2C:1-1 b, which states that
In arguing the inapplicability of N.J.S.A. 2C:1-1 b defendant relies on an exception to that rule as provided in N.J.S.A. 2C:1-1 c(1) which states:
In any case pending on or initiated after the effective date of the code involving an offense committed prior to such date:
(1) The procedural provisions of the Code shall govern, insofar as they are justly applicable and their application does not introduce confusion or delay. [emphasis supplied]
Defendant argues that the statute of limitations is a procedural rather than a substantive provision and therefore the code's limitation applies. Thus, the issue is whether in the context of the Code's applicability to pre-Code offenses, the statute of limitations is substantive or procedural.
The substantive-procedural dichotomy is traditionally difficult to define. The New Jersey Supreme Court notes in Busik v. ...