places the Conservator in the position of an employer. The Order, however, states that "the operations of the casino hotel shall be conducted by [defendants] under the general guidance and oversight, but without specific review or approval, of the Conservator." State of New Jersey Casino Control Commission Order No. 89-108. The Commission ordered the Conservator to "assess and monitor" defendants' financial situation, not to take over day to day operations. Id.
Although the Conservator was authorized to sell the Atlantis, he could only do so after "prior consultation with [defendants] as to the reasonableness of [the] terms and conditions" of the sale. Id. In addition defendants were authorized to continue "negotiating with potential purchasers," while the conservator would participate in these negotiations "to the extent of asking questions and expressing his views." Id. The Conservator could "take no unusual or disruptive action" without first consulting the Commission, and the defendants could take no significant action without consulting the Conservator. Id.
It appears that the Commission implemented a system of checks and balances, pending the sale of the Atlantis, in order to assure that defendants met minimum regulatory standards, without unduly disrupting day to day operations. The checks and balances served to curb any major action on the part of the defendants and the Conservator, but the daily operation was handled by defendants. This is illustrated by the fact that defendants, and not the Conservator, "laid off" the employees pursuant to the Commission's order to cease all gaming operations.
While 5 N.J.S.A. 12-130.2 (1988) gives the Conservator broad powers, the Commission did not appoint the Conservator with the intent that he should exercise all those powers. Nor did the Conservator actually exercise many of his statutory powers. In fact, the Commission even notes in its Order the Conservator's "relatively limited role". State of New Jersey Casino Control Commission Order No. 89-108. Since the Conservator never exercised his statutory powers, he never filled the role of the employer. Rather, the Conservator let his statutory power remain dormant and fulfilled a regulatory function. Therefore he did not succeed to defendants "WARN" act obligations.
Defendants maintain that the Conservator is an indispensable party pursuant to Fed.R.Civ.P. 19(b). Since Conservator did not succeed to defendants' "WARN" Act obligations, we find that he is not an indispensable party.
The New Jersey Wage Payment Law Does Not Apply To Retroactive Pay Benefits
As to plaintiffs' claim that defendants violated the New Jersey Wage Payment Law, we hold that this law does not apply to retroactive pay benefits. The New Jersey Wage Payment Law provides that "every employer shall pay the full amount of wages due to his employees." 34 N.J.S.A. § 11-4.2 (1988). Wages are defined as "direct monetary compensation for labor or services rendered by an employee, where the amount is determined on a time, task, piece, or commission basis excluding any form of supplementary incentives and bonuses which are calculated independently of regular wages and paid in addition thereto." 34 N.J.S.A. § 11-4.1 (1988). Although defendants' retroactive pay benefits may have been calculated on a "time, task, piece or commission basis," they are not wages for purposes of the statute. The statute provides that wages be paid at least "twice during each calender month" and that "the end of the pay period for which payment is made on regular payday shall not be more than ten working days before such regular payday." This clearly indicates that "wages" are payments promised in advance of the services performed and paid promptly, or at least intended to be paid promptly, after services are rendered. Retroactive payments do not fit into this statutory scheme and are not addressed by this statute. Therefore defendants' motion to dismiss on this issue shall be granted.
For the aforementioned reasons defendants' motion to dismiss shall be denied in part and granted in part. An appropriate order shall follow.
ORDER-November 22, 1989, Filed
This matter having come before the Court on a motion by defendants to dismiss plaintiffs' complaint pursuant to Fed.R.Civ.P. 12 (b)(6); and
For the reasons set forth in the Court's opinion filed this day; and
For good cause shown;
It is on this 22nd day of November, 1989 ORDERED that said motion be and the same is hereby DENIED in part and GRANTED in part.