Five Migrant Farmworkers v. Hoffman

• Decision Date: 26 August 1975
• Citation: 136 N.J.Super. 242,345 A.2d 378
• Parties: , 1975-1976 O.S.H.D. (CCH) P 20,057 FIVE MIGRANT FARMWORKERS, on behalf of themselves and all others similarly situated, Plaintiffs, v. Joseph HOFFMAN, in his capacity as Commissioner of the Department of Labor& Industry, et al., Defendants.
• Court: New Jersey Superior Court

Page 242

136 N.J.Super. 242

345 A.2d 378, 1975-1976 O.S.H.D. (CCH) P 20,057

FIVE MIGRANT FARMWORKERS, on behalf of themselves and all others similarly situated, Plaintiffs, v. Joseph HOFFMAN, in his capacity as Commissioner of the Department of Labor& Industry, et al., Defendants.

Superior Court of New Jersey Law Division.

Aug. 26, 1975.

Michael S. Berger, Camden, for plaintiffs (Camden Regional Legal Services, Inc., attorney).

Miriam Daniel Guido for plaintiffs, pro hac vice.

Michael S. Boker, Deputy Atty. Gen., for defendants Hoffman and Gomes (William F. Hyland, Atty. Gen., attorney).

Jeffrey Doranz, Trenton, for U.S. Dept. of Labor as amicus curiae.

HORN, A.J.S.C.

Defendants Hoffman and Gomes, in their respective governmental capacities, move for a dismissal of this in lieu action or for summary judgment. The corporate defendant, Samuel Stern & Sons, Inc., has been dropped from the case by consent of plaintiffs.

The action, brought and permitted to proceed as a class action for 'Five Migrant Farmworkers and all others similarly situated,' alleges essentially that there are approximately 1,000 migrant farm labor camps in New Jersey which are used to house nearly 11,000 workers who come to this State for agricultural work. Before 1975 the program of enforcement for minimum standards of housing and sanitation have included pre-occupancy inspections as well as periodic inspections of all migrant labor camps in New Jersey.

Commencing in 1975 the State will no longer make pre-occupancy inspections of labor camps except as to those which recuit workers through the Division of Employment Services which result from the requirements of the Wagner-Peyser Act of 1933. 29 U.S.C.A. § 49 Et seq. As a result, no such pre-occupancy inspections will be performed in 600 to 700 migrant labor camps in New Jersey.

It is further asserted that plaintiffs and the others similarly situate suffer and will in the future suffer from the failure to make such inspections as mandated by the provisions of the Seasonal Farm Labor Act, N.J.S.A. 34:9A--1 Et seq., and particularly 34:9A--20, which is partially quoted hereinafter.

Although they do not dispute the material allegations of fact, defendants and Amicus curiae disagree with plaintiffs' thesis with respect to the present obligation on the part of the State to make pre-occupancy inspections. The basis for the disagreement rests on the issue of pre-emption by the Federal Government of the obligation, right and duty for such pre-occupancy inspections, I.e., are the terms of N.J.S.A. 34:9A--20 superseded and rendered nugatory by the provisions of the Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C.A. § 651 Et seq.?

The problem did not arise until April 1, 1975 because, pursuant to OSHA, the U.S. Secretary of Labor (Secretary) had approved a plan submitted by New Jersey, 29 U.S.C.A. § 672(g), in 1972, whereby the Federal Government provided 50% Of the funds for administration and enforcement of the New Jersey program, including pre-occupancy as well as post-occupancy inspections of camps. Upon the failure of the State Legislature to enact required legislation to continue the plan in force, both the Secretary and defendant Hoffman, as the Commissioner of Labor and Industry, mutually agreed that the plan must become ineffective, leaving the parties to carry out only the obligations imposed otherwise. Consequently, the Commissioner withdrew regulations pertaining to pre-occupancy inspections.

Plaintiffs submit that N.J.S.A. 34:9A--20 still requires the State to make such preoccupancy inspections. This statute partially reads as follows:

Each person employing any person to work in or at camps * * * shall apply, not later than 60 days prior to the opening of any such camp * * * to the bureau (of migrant labor) for a certificate of compliance of such camp With the requirements of this act. * * * The commissioner (of Labor and Industry) shall cause each camp to be inspected within 45 days of receipt of an application * * *. If the commissioner finds from the application and inspection that a camp fully complies With the requirements of this act, he shall issue a certificate to that effect. No camp shall be maintained, operated, used or occupied until the commissioner shall have issued therefor a certificate as required by this section; provided, that if no inspection of a camp has been made within 45 days of the receipt of an application for a certificate of compliance, such camp may open but shall be closed by the commissioner if subsequent inspection discloses the fact that such camp does not substantially comply with the requirements of this act. (Emphasis supplied)

It is conceded by plaintiffs that at least part of the laws of New Jersey pertaining to inspections of farm labor camps have been superseded as the result of pre-emption under OSHA. Specifically, post-occupancy inspections are no longer to be made by the State under N.J.S.A. 34:9A--10, which mandates post-occupancy inspections.

The pre-emption stems from section 18(a) of OSHA, which specifically provides:

Nothing in this Act shall prevent any State agency or court from asserting jurisdiction under State law over any occupational safety or health issue With respect to which no standard is in effect under section 655. (29 U.S.C.A. 667(a); emphasis supplied)

The Secretary, pursuant to the statute, has promulgated a broad set of standards substantially similar to those proclaimed by the New Jersey Department of Labor and Industry. The effect of the adoption of these standards, as already mentioned, admittedly is to relieve the State from performing such post-occupancy inspections.

Plaintiffs advance several grounds for their contentions that the State is still required to conduct pre-occupancy inspections pursuant to N.J.S.A. 34:9A--20. They urge that there is no explicit or implicit pre-emption of New Jersey certification of farm labor housing and that there is no federal standard in effect to regulate and certify farm labor housing prior to occupancy. They observe that the Wagner-Peyser Act, 29 U.S.C.A. § 49 Et seq., which provides for the interstate recruitment of farm workers through the state employment services, makes it mandatory by reason of the Federal Code of Regulations, 20 C.F.R. 620, that pre-occupancy inspections be made by ...