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Perry v. Borough of Swedesboro

Decided: June 24, 1985.

CARL PERRY, PLAINTIFF,
v.
BOROUGH OF SWEDESBORO, DEFENDANT



Crabtree, J.t.c. (temporarily assigned).

Crabtree

Plaintiff, a former sergeant of defendant borough's police department, sues to recover compensation for overtime work performed between March 15, 1980 and July 15, 1981. Plaintiff's claim is predicated on the Federal Fair Labor Standards Act (FLSA) or, in the alternative, the New Jersey State Wage and Hour Law, N.J.S.A. 34:11-56a et seq. Plaintiff also relies upon N.J.S.A. 40A:14-133, which provides that no police officer shall be required to work more than six days in any one week.

The Borough of Swedesboro is a small municipality, comprising only one square mile in total area. It is governed by a mayor and six councilmen duly elected by the registered voters of the borough. Prior to January 1980, the borough's police

department consisted of five members. In April and December 1979 two police officers were suspended on criminal charges. At all times pertinent hereto the borough suffered from tight budgetary constraints arising from the perceived need to provide funds for potential reinstatement of the suspended officers with back pay as well as for legal fees and costs to be incurred both to defend the suspended officers in criminal proceedings and to represent the borough in related legal controversies. As it was apparent that adequate provision for such expenses could not be made without violating the "cap law," N.J.S.A. 40A:4-45.1 et seq., an effort was made, by way of referendum, to secure public approval of an increase in the municipal budget greater than the limit imposed by the "cap law." This effort was roundly defeated by the voters, whereupon, on or about March 15, 1980, the suspended officers, together with a third officer were laid off. At this point, and continuing until plaintiff's resignation in July 1981 (except for the period July 1980 to May 1981), the borough employed only two full-time police officers, viz. plaintiff and the chief of police, Daniel De Mora.

During the period March 15, 1980 to July 15, 1981 plaintiff was assigned to a 24-hour shift on alternate days. Each shift consisted of six hours in uniform on patrol in the municipality and 18 hours of standby. During the standby hours plaintiff, though not required to be in uniform, was obligated to remain within the geographic confines of the borough and to be available to respond immediately to calls from the police dispatcher. If plaintiff found it necessary to leave the borough during his standby time he was required to make certain that the municipality had police coverage, either by Chief De Mora or by a member of the police force of a neighboring municipality. In July 1980 defendant hired a third officer, at which point plaintiff's 24-hour shift arose every third day. This situation continued until May 1981 when the third officer's employment was terminated, whereupon plaintiff resumed his 24-hour shift every other day.

The borough's salary ordinances for 1980 and 1981 made no provision for overtime compensation.

At no time during the period covered by this proceeding did the borough or any official thereof declare an emergency within the purview of N.J.S.A. 40A:14-133 and 134; nor did the borough adopt the ordinance contemplated by N.J.S.A. 40A:14-132.

Plaintiff's claim for overtime compensation is predicated on the treatment of standby time as working time. For the reasons hereinafter stated, a determination of that issue is not necessary.

The Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. (FLSA) provides, in pertinent part:

Except as otherwise provided in this section, no employer shall employ any of his employees who in any work week is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods and services for commerce, for a work week longer than 40 hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed. [§ 207(a)(1)]

The United States Supreme Court in National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976) held the FLSA as applied to "integral governmental functions" of state and municipal governments to be an impermissible interference with those functions in contravention of both the Commerce Clause of the United States Constitution and the Tenth Amendment thereto. At the time the case sub judice was tried National League of Cities was the governing ...


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