On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8533-99.
Before Judges Skillman, Carchman and Wells.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 25, 2001
The issue presented by this appeal is whether a two or six year limitations period applies to an employee's private cause of action for underpayment of the wages required by the Prevailing Wage Act (the Act), N.J.S.A. 34:11-56.25 to -56.46. We conclude that an employee has six years to bring a claim for additional wages under the Act, and therefore reverse the dismissal of this action as untimely.
Plaintiff Steven J. Wittek was employed by defendant Extel Communications from September 1989 through October 1993 as a cable installer on a building known as the Passaic County Administration Building in Paterson. Shortly after the conclusion of this employment, Wittek filed a protest with the New Jersey Department of Labor, which alleged that Extel had not paid him the full amount of wages required under the Prevailing Wage Act.
The Department conducted an investigation and found that Extel had underpaid Wittek and six other employees a total of $27,788.46. The amount of the alleged underpayment to Wittek was $9,755.23. By a letter dated May 5, 1994, the Department assessed Extel and Prismatic Development Corporation, the general contractor on the project, the additional wages allegedly owed the seven employees as well as $5,278.85 in administrative penalties and fees. Extel and Prismatic contested the assessment, and requested a hearing before the Office of Administrative Law. Prior to the hearing, the Department entered into a settlement agreement under which Extel and Prismatic agreed to pay $8,000 in exchange for the dismissal of the Department's claims. The Department distributed $5,000 of the settlement proceeds to Wittek,*fn1 retaining the balance for administrative penalties and fees. However, the Stipulation of Settlement expressly stated that "the Department does not waive any rights . . . former employees . . . may have to pursue . . . claims" against Extel and Prismatic.
On June 22, 1999, Wittek and another employee, Michael A. Troise, filed a complaint in the Law Division seeking the full amount of additional wages alleged owed them for the work performed on the Administration Building. The complaint named as defendants not only Extel and Prismatic but also the Department and St. Paul Seaboard Surety Co., which had issued a surety bond for the Administration Building project.*fn2 The Department filed a motion to dismiss the complaint against it for failure to state a cause of action, which the trial court granted. Plaintiffs filed a motion for summary judgment against the other defendants, and Extel filed a cross-motion to dismiss on the ground that the complaint had been filed beyond the two-year period within which, according to Extel, a claim under the Prevailing Wage Act must be filed.
The trial court denied plaintiffs' motion and dismissed their complaint as untimely because it was not filed within two years after they finished working on the Administration Building. The court did not issue any written or oral opinion setting forth reasons for this conclusion. However, the order of dismissal recited that the court had "relied upon the provisions of N.J.S.A. 34:11-56a25.1," which provides a two-year limitations period to file claims for unpaid minimum wages and overtime compensation under the Wage and Hour Law. Wittek subsequently filed this appeal.*fn3
The Prevailing Wage Act requires every contract for "any public work" in excess of a threshold amount to "contain a provision" stating that the workers "shall be paid not less than [the] prevailing wage rate." N.J.S.A. 34:11-56.27. The "prevailing wage" is defined as "the wage rate paid by virtue of collective bargaining agreements by employers employing a majority of workers of that craft or trade. . . ." N.J.S.A. 34:11-56.26(9). The Act requires "[t]he public body . . . awarding any contract for public work . . . [to] ascertain from the [Commissioner of Labor] the prevailing wage rate in the locality in which the public work is to be performed for each craft or trade," and to specify those wages in the contract. N.J.S.A. 34:11-56.28.
An employee who is paid less than the prevailing wage for work covered by the Act may pursue two statutory remedies. First:
Any workman may . . . file a protest in writing with the commissioner objecting to the amount of wages paid for service performed by him on a public work as being less than the prevailing wages for such services. [N.J.S.A. 34:11-56.34(b).]
If the Commissioner finds that an employer has failed to pay the prevailing wage, he may assess administrative penalties, N.J.S.A. 34:11-56.35, prohibit the employer from being awarded any public contract for three years, N.J.S.A. 34:11-56.37, 56.38, and "supervise the payment of [any] amounts due to workers." N.J.S.A. 34:11-56.36. Second:
[A]ny workman . . . may recover in a civil action the full amount of such prevailing wage less any amount actually paid to him or her by the employer together with costs and such reasonable attorney's fees as ...