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Visiting Homemaker Service of Hudson County v. Board of Chosen Freeholders of the County of Hudson

October 7, 2005

VISITING HOMEMAKER SERVICE OF HUDSON COUNTY, PLAINTIFF-RESPONDENT,
v.
BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF HUDSON AND COUNTY OF HUDSON DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-1332-03.

The opinion of the court was delivered by: Lintner, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued telephonically September 15, 2005

Before Judges Cuff, Lintner and Gilroy.

This, a case of first impression in New Jersey, requires us to determine the validity of Hudson County's 2003 Living Wage Ordinance (the Ordinance), which directs contractors to provide an increased minimum wage and mandatory health benefits to their employees providing food, janitorial, unarmed security guard, and home health care services to the County. Plaintiff, Visiting Homemaker Service (VHS), a company that had previously been selected by Hudson County (the County) to provide health care to county residents, sought to prevent the County from imposing its amended Ordinance requiring plaintiff to provide its employees with certain health benefits and pay them a wage equal to one-hundred and fifty percent of the federal minimum wage. We hold that the Ordinance does not possess the infirmities found to exist by the Law Division judge and reverse his order invalidating it as contrary to the State's bidding laws, preempted by the State minimum wage law, N.J.S.A. 34:11-56a4, and violative of constitutional equal protection guarantees.

After the judge invalidated the Ordinance and during the pendency of this appeal, the County continued to provide its residents with home health care services by entering into contracts with contractors as it had done prior to the adoption of the challenged Ordinance. Also while this appeal was pending, the Legislature amended N.J.S.A. 34:11-56a4 to expressly permit political subdivisions to enter into agreements and establish standards providing wages and protections greater than those required by state or federal law. At oral argument, we were advised by counsel that, as a result of the amendment to N.J.S.A. 34:11-56a4, the County is currently in the process of proposing a new 2005 ordinance reestablishing a Living Wage and providing for defined health benefits.*fn1 Although we express certain concerns over the sufficiency of the challenged Ordinance because it does not address a means to determine what minimum heath benefits must be provided to home health service workers by prospective contractors, we decline to decide the issue raised as it too is rendered moot by the amendment to N.J.S.A. 34:11-56a4 and the County's consideration of a new ordinance.

We restate the undisputed procedural history and relevant facts. Plaintiff is a non-profit home health care organization that employs approximately 650 Certified Home Health Aides, providing home health care services to sick, elderly, and disabled residents of the County. Most of plaintiff's employees are members of the United Service Workers of America, Local 306, with which it has had collective bargaining since 1983. Plaintiff has provided home health care services, housekeeping services, and respite care services to the County's Department of Health and Human Services for over forty years. Until 1999, plaintiff contracted with the County to provide those services without competitive bidding by other providers because the Local Public Contracts Law exempted non-profit home care agencies from bidding requirements. In 1999, the Local Public Contracts Law was amended to utilize competitive contracting in lieu of public bidding for home health care service contracts, N.J.S.A. 40A:11-4.1.

Also in 1999, the County enacted its first Living Wage Ordinance, No. 22-1-1999. It provided that contractors who supply food service workers, janitorial workers, and unarmed security guards to the County must provide certain minimum pay and benefits to those employees who work at least twenty hours per week. Specifically, the first Ordinance required such employees to receive:

1. The hourly rate of pay of one hundred and fifty percent of the Federal Minimum Wage at the time the contract is bid; and

2. An annual paid vacation of five days after twelve months of employment; and

3. Medical benefits shall be provided for each employee.

On February 28, 2002, the County amended the 1999 Living Wage Ordinance. The 2002 amendment, which included health service workers as a new category of contract employees, provided:

Such food service workers, janitorial workers, health service workers and unarmed security guards who work at least 20 hours per week at various County of Hudson work sites under contract or with the county shall receive the following minimum pay and benefits:

1. The hourly rate of pay of one hundred and fifty percent of the Federal Minimum Wage at the time the contract is bid or renewed or proposals received; and

2. An annual paid vacation of five days after twelve months of employment; and

3. Medical benefits shall be provided by the employer at the employer's expense for each employee ...


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