Yellow Cab Co. of Camden v. State Through Director of Wage and Hour Bureau

• Decision Date: 27 November 1973
• Parties: , 21 Wage & Hour Cas. (BNA) 469, 72 Lab.Cas. P 53,213 YELLOW CAB COMPANY OF CAMDEN, a corporation of New Jersey, et al., Plaintiffs-Appellants, v. The STATE of New Jersey, Through the DIRECTOR OF WAGE AND HOUR BUREAU, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 81

126 N.J.Super. 81

312 A.2d 870, 21 Wage & Hour Cas. (BNA) 469,

72 Lab.Cas. P 53,213

YELLOW CAB COMPANY OF CAMDEN, a corporation of New Jersey et al., Plaintiffs-Appellants, v. The STATE of New Jersey, Through the DIRECTOR OF WAGE AND HOUR BUREAU, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued Oct. 24, 1973.

Decided Nov. 27, 1973.

James J. Shrager, Newark, for plaintiffs-appellants (Hannoch, Weisman, Stern & Besser, Newark, attorneys; Henry J. Tyler, Haddonfield, on the brief).

Howard S. Simonoff, Camden, filed a statement in lieu of brief, amicus curiae, on behalf of Teamsters Local 676 (Tomar, Parks, Seliger, Simonoff & Adourian, Camden, attorneys).

Mary Ann Burgess, Deputy Atty. Gen., for defendant-respondent (George F. Kugler, Jr., Atty. Gen., attorney; Stephen Skillman, Asst. Atty. Gen., of counsel).

Before Judges CARTON, SEIDMAN and GOLDMANN.

The opinion of the court was delivered by

CARTON, P.J.A.D.

The principal question to be resolved on this appeal is whether taxi companies are subject to the overtime provisions of the New Jersey Wage and Hour Law, N.J.S.A. 34:11--56a4. Related issues presented are whether these provisions represent a valid exercise of legislative power and whether the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., has preempted the area.

Plaintiff Yellow Cab Company of Camden and individuals representing themselves and all other drivers of the company sought a declaratory judgment to determine that the overtime provisions were inapplicable. The trial court held that such provisions did apply; that they represented a valid exercise of legisaltive power, and that there was no preemption. Plaintiffs challenge each of these determinations.

The facts are brief and undisputed. Yellow Cab is a corporation organized under the laws of New Jersey, with its principal place of business in Camden. The two individual plaintiffs are employees of Yellow Cab and members and shop stewards of Local 676 of the Teamsters Union.

Yellow Cab is a carrier of passengers for hire. It operates under franchises which are issued and regulated by the State of New Jersey. N.J.S.A 48:16--2. Its drivers are compensated on a commission basis which was negotiated by collective bargaining so as to include compensation for overtime work. A driver with six months' experience received a commission of 48% Of all revenues taken in. Fringe benefits to the drivers and employee taxes constitute an additional 12% Of revenues collected.

A driver for Yellow Cab, after reporting to the garage and punching a time card, is free to operate entirely on his own. Each driver's earnings are completely dependent upon his own efforts. Earnings very from a low of $3,100 to a high of $8,400 a year.

In 1970 the State of New Jersey filed a complaint in the Camden Municipal Court charging Yellow Cab with multiple criminal violations of N.J.S.A. 34:11--56a4. That litigation precipitated the present declaratory judgment action. Prosecution of the criminal portion was then stayed by consent of the parties, with approval of the Camden Municipal Court, pending determination of the action for declaratory judgment.

APPLICABILITY OF OVERTIME PROVISIONS TO TAXICAB INDUSTRY

Yellow Cab's basic argument is that it is a common carrier by motor bus and thereby exempted from the overtime provisions of the New Jersey Wage and Hour Law. The statute (N.J.S.A. 34:11--56a4) specifically provides that the overtime provisions shall not apply to employees of such a carrier. In pertinent part it reads:

Every employer shall * * * pay to each of his employees wages at a rate * * * 1 and 1/2 times such employee's regular hourly wage for each hour of working time in excess of 40 hours in any week * * *. The provisions of this section * * * shall not apply to * * * An employee of a common carrier of passengers by motor bus * * *. (Emphasis added)

Plaintiffs' thesis is that the words 'motor bus' as used in the statute must be construed to include taxicabs, thereby making the statutory exemption applicable to company drivers.

We deem such construction strained and unnatural in light of the legislative history of this provision, the salutary public policy embodied in it, and the specific language used in the statute.

In 1966 the Legislature enacted the New Jersey Wage and Hour Law, N.J.S.A. 34:11--56a et seq., declaring it to be

* * * the public policy of this State to establish a minimum wage level for workers in order to safeguard their health, efficiency, and general well-being and to protect them as well as their employers from the effects of serious and unfair competition resulting from wage levels detrimental to their health, efficiency and well-being.

At the time the New Jersey Wage and Hour Law was enacted the Federal Fair Labor Standards Act exempted not only motor bus carriers, but also specifically excluded 'any employee of an employer engaged in the business of operating taxicabs.' 29 U.S.C.A., § 213(a)(12); (b)(7); thereafter amended P.L. 89--601, 80 Stat. 833, 834, 836--838 (Sept. 23, 1966). The New Jersey statute, however, although exempting 'common carriers of passengers by motor bus,' contains no such exclusion for either taxicab operators or for the taxicab industry.

The exemptions from the Fair Labor Standards Act were matters of great public interest and aroused spirited debate at the time of the enactment of the New Jersey Wage and Hour Law. Presumably the Legislature was well aware of the distinct exclusions from the federal law for 'motor buses' and for 'taxicabs' and deliberately determined that the interests of the citizens of New Jersey were best served by not granting a similar exclusion to the taxicab industry from the provisions of the Wage and Hour Law. ¹ Cf. Male v. Pompton Lakes Mun. Util. Auth., 105 N.J.Super. 348, 355--356, 252 A.2d 224 (Ch.Div.1969).

The humanitarian and remedial nature of this legislation requires that any exemption therefrom be narrowly construed, giving due regard to the plain meaning of the statutory language and the intent of the Legislature. See A. H. Phillips, Inc. v. Walling, 324 U.S. 490, 65 S.Ct. 807, 89 L.Ed. 1095, 157 A.L.R. 876 (1945). The remedial nature of this law suggests also that the burden of proving that the employees' activities fall within the claimed exemption should be imposed on the employer. Sherman v. Coastal Cities Coach Co., 4 N.J.Super. 283, 290, 66 A.2d 892 (App.Div.1949).

The words 'taxicab' and 'motor bus' are words of common use. Such words are to be taken in their natural, plain, obvious and ordinary signification. A subtle or forced construction for the purpose of either extending or limiting their operation should not be indulged. Jamouneau v. Harner, 16 N.J. 500, 109 A.2d 640 (1954), cert. den. 349 U.S. 904, 75 S.Ct. 580, 99 L.Ed. 1241 (1955). See N.J.S.A. 1:1--1.

The term 'motor bus' is not specifically defined in the New Jersey Wage and Hour Law's special definition section, N.J.S.A. 34:11--56a1. Thus, the term must be given its plain and ordinary meaning. 'Motor bus' does not normally include the type of vehicle commonly called a 'taxicab.' Webster's Third New International Dictionary (1966) defines 'motor bus' as 'an automotive omnibus,' with 'omnibus' in turn defined as 'a public vehicle usually automotive and 4-wheeled and designed to carry a comparatively large number of passengers: 'bus'; whereas a 'taxicab' is termed 'a chauffeur-driven automobile Available on call to carry A passenger between any two points (as within a city) for a fare determined by taximeter * * *.' (Emphasis supplied).

It is undeniable that in everyday use a distinction is made between taxicabs and buses. Indeed, plaintiffs readily admit that such is the case. However, plaintiff company cites in support of its exemption claim definitions which appear in the Public Utilities Code (N.J.S.A. 48:4--1) and the Motor Vehicles Traffic Act (N.J.S.A. 39:1--1).

In rejecting plaintiff's contention that it is a 'common carrier of passengers by motor bus,' and therefore exempt from the overtime provisions of N.J.S.A. 34:11--56a4, Judge Wick held that such definitions in those statutes shed no light on the meaning of 'motor vehicle' as it is used in the Wage and Hour Law since they were enacted for entirely different purposes. In so holding he followed State v. Comfort Cab, Inc., 118 N.J.Super. 162, 286 A.2d 742 (Law Div. 1972), which involved a fact situation essentially the same as the one before us. We agree with the conclusions stated in Comfort that

* * * there is no reason for giving the term 'motor bus' in the foregoing exemption any meaning other than ordinarily given to the term. 'Motor bus' normally does not include a taxicab.

Thus, the statutory exemption for a motor bus, which is to be strictly and narrowly construed as well as defined by its ordinary and plain meaning, does not include 'taxicabs.' (at 175--176, 286 A.2d at 749.)

Equally unpersuasive is plaintiffs' alternative argument that taxi operators are 'outside salesmen,' as defined by Regulation 4.4 (N.J.A.C. 12:56--4.4), and therefore exempt from overtime provisions of the New Jersey Wage and Hour Law. Those provisions, in pertinent part, read:

* * * The wage rates fixed in this section shall not be applicable to employees engaged in domestic service in the home of the employer, to persons under the age of 18 or to persons employed as outside salesmen as such term shall be defined and delimited in regulations adopted by the commissioner.

The Commissioner of Labor and Industry is specifically authorized by N.J.S.A. 34:11--56a5 to

* * * make such administrative regulations as he shall deem appropriate to carry out the purposes of this act or necessary to prevent the circumvention or evasion thereof, and to safeguard the minimum wage rates hereby established. Such regulations may include regulations defining and governing outside salesmen * * *.

Regulation 4.4...