Lane v. HoldermanLane v. Holderman
This is a proceeding instituted in this court under R.R. 4:88-10 by 64 employers engaged in the laundry, cleaning or dyeing businesses. They seek a declaratory judgment setting aside Minimum Fair Wage Standards Mandatory Order No. 10 of the Commissioner of Labor and Industry, insofar as it relates to overtime wage rates. The order affects only women and minors employed in those businesses.
The petitioners by their stipulation have confined the case to two questions, which may be stated thus: does
The questions are novel. In fact there are no reported cases in this State dealing with the Minimum Wage Act, though it was originally adopted in 1933 (L. 1933, c. 152). As to the history of such legislation, see De Vyver, “Regulation of Wages and Hours Prior to 1938,” 6 Law and Contemp. Problems 323 (1939); Leiter, “The Principle of Overtime,” 2 Labor L.J. 24 (1951). As to a law fixing the maximum hours of labor for females, see
In the present case the Commissioner appointed a wage board pursuant to
“1. That the basic Minimum Fair Wage for Women and Minors employed as non-clerical workers in Laundry and Cleaning and Dyeing Occupations be 80¢ per hour for the first four weeks of employment and 85¢ per hour thereafter.
So far as appears in the record before us, the wage board did not pass upon overtime rates; however the statute does not require it to do so. Order No. 10 adopts the report and includes, by way of supplement, the following regulations, which are attacked by this proceeding:
“OVERTIME RATES. Overtime rates mean one and one-half times the employee‘s regular hourly wage rate which shall be paid to each woman and minor subject to the provisions of this Order for hours worked in excess of forty-eight (48) hours in any work week during the period of time beginning with May 6, 1956 through August 6, 1956; hours worked in excess of forty-four (44) hours in any work week during the period of time beginning with August 7, 1956 through November 7, 1956, and hours worked in excess of forty (40) hours in any work week beginning on or after November 8, 1956. The overtime rates established by this Order shall not apply in the case of any person employed on a weekly, monthly or yearly salary basis, whose salary reduced to a weekly basis is in excess of $60.00 and whose employment is in a bona-fide supervisory or executive capacity.
REGULARLY HOURLY WAGE RATE. The term `regular hourly wage rate,’ as used in this Order, shall mean the amount that the employee is regularly paid for each hour of work. When an employee is paid on a piece work basis or any other basis than an hourly rate the `regular hourly wage rate’ shall be determined by dividing the total of the hours worked during the week into the employee‘s total earnings exclusive of part time bonuses for the week and exclusive of wages earned at overtime rates as such rates are defined in this Order.”
The question as to whether the Commissioner has sufficient power to deal with overtime turns largely on
“Within ten days after the hearing the commissioner shall confer with the director and approve or disapprove the report of the wage board. If the report is disapproved the commissioner may resubmit the matter to the same wage board or to a new wage board. If the report is approved the commissioner shall make a mandatory order which shall define minimum fair wage rates in the occupation or occupations as recommended in the report of the wage board and which shall include such proposed administrative regulations as the commissioner may deem appropriate to supplement the report of the wage board and to safeguard the minimum fair wage standards
An administrative regulation, purporting to effectuate a statute, will not be set aside on the ground that it transgresses the statute, unless the transgression is plain; the presumption is in favor of validity. Grenewicz v. Ligham, 34 N.J. Super. 1, 9 (App. Div. 1955).
But we need not rely upon presumptions. It seems to us beyond question here that this statute gives the Commissioner the power to
”supplement” the report with regulations ”defining and governing * * * overtime * * * rates, bonuses or special pay for special or extra work,”
and the further power to
“provide in such regulations without departing from the basic minimum rates recommended by the wage board such * * * addition to such rates in or for such special cases or classes of cases as those herein enumerated as the commissioner may find appropriate to safeguard the basic minimum rates established.” (Italics added.)
This last provision seems to state expressly that in any of the enumerated classes of cases, such as overtime, the Commissioner may provide for an addition to the basic rate. Cf. G.O. Miller Telephone Co. v. Minimum Wage Commission, 145 Minn. 262, 177 N.W. 341, 344 (Sup. Ct. 1920), where there was no express power to fix overtime rates or hours of labor, and yet the court held that the mere power
The petitioners argue that the phrase, “defining and governing” overtime rates, does not give the Commissioner power to establish overtime rates. We think otherwise. The word “define” in this context means to fix or establish. Boyd Paving & Contracting Co. v. Ward, 85 F. 27, 35 (8 Cir. 1898); Dow v. Gould & Curry Silver Min. Co., 31 Cal. 629, 639 (Sup. Ct. 1867); State ex rel. Devening v. Bartholomew, 176 Ind. 182, 95 N.E. 417, 419 (Sup. Ct. 1911); Sanders v. Belue, 78 S.C. 171, 58 S.E. 762, 764 (Sup. Ct. 1907); Black‘s Law Dictionary (4th ed.); Standard Dictionary; 26 C.J.S., Define, p. 678; cf. Webster‘s New International Dictionary (2nd ed.). The word “govern” means to direct and control, rule or regulate. Tucker v. State, 218 Ind. 614, 35 N.E.2d 270, 291 (Sup. Ct. 1941); cf. Richmond F. & P.R. Co. v. City of Richmond, 96 U.S. 521, 528, 24 L.Ed. 734, 737 (1878).
Petitioners argue that the power to define and govern overtime rates, does not include the power to fix the number of hours per week after which such rates are to become effective. But we think one thing goes with the other. The authority to fix overtime rates would not mean much if the Commissioner could not fix the point in the work week at which they were to become applicable. Petitioners, it is to be noted, do not challenge the order on the ground that it is unreasonable or unsupported by adequate evidence; for example, they make no claim that the order is unreasonable insofar as it requires overtime rates as to “hours worked in excess of forty (40) hours in any work week beginning on or after November 8, 1956.”
If we had any doubt as to whether the statute confers such powers upon the Commissioner, it would be resolved by the interpretation that has been put upon the statute by the Commissioner for 17 years. Minimum wage orders No. 2, 3, 4, 5, 6, 8 and 9, issued by the Commissioner, provide for overtime rates as follows (4 C.C.H., Labor Law Rep., New Jersey, § 44,055):
Mandatory Order No. Industry Overtime rate 1 July 11, 1938 Laundry None 2 July 3, 1939 Light manufacturing 1 1/2 times regular hourly rate ”and not at any minimum rate established by this Wage Order” for hours in excess of 44 per week for the period Jan. 3-Oct. 24, 1939; hours in excess of 42 per week for period Oct. 25, 1939 - Oct. 24, 1940; hours in excess of 40 per week on or after Oct. 24, 1940 Oct. 29, 1940 Light manufacturing Same (revised) 3 July 3, 1939 Wearing Apparel & Same as Order No. 2 Allied Occupations Dec. 1, 1942 ” ” Same (revised) 4 May 22, 1939 Cleaning & Dyeing 1 1/2 basic minimum over 54 hours May 6, 1940 ” ” 1 1/2 basic minimum over 54 hours 5 Jan. 10, 1943 Beauty Culture 1 1/2 times minimum for hours in excess of 48 per week 6 Aug. 13, 1946 Restaurant 1 1/2 times minimum 7 Oct. 24, 1946 Laundry, cleaning None & dyeing 8 June 6, 1946 Retail trade 1 1/2 times minimum for hours in excess of 40 per week in zone “A” counties; and in excess of 44 per week in zone “B” counties 9 Feb. 19, 1956 Restaurant 1 1/2 times regular hourly rate for hours in excess of 48 per week for period Feb. 19 - May 19, 1956; hours in excess of 44 per week for period May 20 - Aug. 17, 1956; and hours in excess of 40 per week on or after Aug. 18, 1956
Here we have not only the administrative gloss, but (so the parties have stipulated) “numerous convictions” in the lower courts for violations of the overtime provisions in Orders No. 2 and 3. In one case in the First Criminal Judicial District Court of the County of Bergen, decided October 27, 1943, where the defendant was found guilty of violating Mandatory Order No. 2 for not paying at 1 1/2 times the regular hourly rate, the court overruled his contention that the statute required him to pay merely 1 1/2 times the minimum rate. A long standing judicial construction of a statute, accompanied by a failure to amend it, is looked upon as some evidence that the construction comports with the legislative intent. Barringer v. Miele, 6 N.J. 139, 144 (1951).
There was such an amendment here, following the original Orders No. 2 and 3 above mentioned; through that amendment,
Moreover, there are similar administrative constructions which have been placed upon similar statutes in other states. We find six states with minimum wage statutes quite like New Jersey‘s statute, in that each authorizes an official to supplement the recommendation of a minimum wage board, with regulations “which shall define” or “defining” overtime
This brings us to a troublesome question suggested by petitioners, which we think is hardly raised by the record and is very little considered by the several answering briefs. New Jersey‘s Order No. 10, which is under attack here, fixes overtime rates at one and one-half times the employee‘s regular wage rate, even though it exceeds the established minimum rate. Has the Commissioner power to fix overtime rates as to wages above the minimum? If so, is he empowered merely to safeguard the overtime order affecting the minimum rate? For example, where an employer pays 150% of the minimum rate, can he be required under this statute to pay overtime at 225% of the minimum rate after 40 hours? Other questions suggest themselves here. On the other hand, note the administrative construction evidenced by New Jersey Orders No. 2, 3 and 9; note also the Connecticut orders cited. The problem, of course, does not arise if the only petitioner or petitioners, who will actually be affected by this order, pay merely the minimum rate; their regular wages would not exceed the established minimum wage scale. But we are not informed by the record what wages are paid by petitioners here. Moreover, it appears that at the present time 63 of the 64 petitioners are voluntarily paying overtime rates at one and one-half times the regular rate; and perhaps (as we suggest) the 64th pays only minimum rates. In fact, there is nothing before us to indicate that any of the petitioners have any reasonable
We therefore conclude that
The second principal question is whether in conferring this power to establish an overtime rate with respect to the minimum wage scale, the Legislature has laid down adequate standards. Petitioners maintain that the Attorney-General‘s construction of the statute would invest the Commissioner with an unlimited authority to fix overtime at any rate or after any hour that might suit his whim. This clearly is not so. Mary Lincoln Candies v. Department of Labor, 289 N.Y. 262, 45 N.E.2d 434, 437, 143 A.L.R. 1078 (Ct. App. 1942).
We think the statute adequately circumscribes the Commissioner‘s power. In fact,
If an analysis is made as to the purposes of fixing a minimum rate, as expressed in the act, it will become quite apparent that an overtime rate may serve to safeguard them. The object of setting up a wage board and of calling upon it “to report upon * * * minimum fair wage rates” is to prevent women or minors from receiving “oppressive and unreasonable wages.” See
“* * * which is both less than the fair and reasonable value of the services rendered and less than sufficient to meet the minimum cost of living necessary for health.”
Minimum wage rates therefore serve two purposes, namely, to provide (1) the minimum “fair and reasonable value of the services rendered” (further see
We shall take these two factors separately. An overtime rate may properly constitute a supplementary “safeguard” of the minimum “fair and reasonable value of services rendered” for which minimum rates are fixed; because an overtime rate today commonly enters into the fixing of the minimum fair and reasonable value of services. This is a fact familiar to us all. See Leiter, supra, 29;
An overtime rate also may properly constitute a supplementary safeguard of minimum rates in connection with the second factor above stated; that is, it may assist in securing a wage “sufficient to meet the minimum cost of living necessary for health.” A living wage is the heart of a minimum wage act. Quite obviously the objects of such an act are not achieved merely by the promulgation of minimum rates; it takes such a rate multiplied by an appropriate number of hours to produce the living wage. Mary Lincoln Candies v. Department of Labor, 289 N.J. 262, 45 N.E.2d 434, 436, 143 A.L.R. 1078 (Ct. App. 1942).
The statute therefore quite plainly lays down a standard for the guidance of the Commissioner when he establishes an overtime rate. He must safeguard the two purposes of minimum rates, above stated; that is, he must secure for the employee, first, the minimum fair and reasonable value of the services rendered and, second, a minimum living wage.
Petitioners’ final point is that the grant of power to the Commissioner to fix overtime rates is unconstitutional in that it enables him, through his order, to constitute a certain act of an employer a misdemeanor. See
Submit judgm