Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-19-1999

Keeley v. Loomis Fargo & Co
Precedential or Non-Precedential:

Docket 98-6428




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Filed July 19, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 98-6428

JOHN KEELEY; TIMMIE ORANGE;
ARIEL KILPATRICK; CHARLES WERDANN,
on behalf of themselves and all others similarly situated,
Appellants

v.

LOOMIS FARGO & CO.

On Appeal From the United States District Court
for the District of New Jersey
(D.C. Civ. No. 97-cv-06207)
District Judge: Honorable Dickinson R. Debevoise

Argued: May 18, 1999

Before: BECKER, Chief Judge, RENDELL and ROSENN
Circuit Judges.

(Filed July 19, 1999)

       PAUL SCHACHTER, ESQUIRE
        (ARGUED)
       MARY P. GALLAGHER, ESQUIRE
       Reinhardt & Schachter, P.C.
       744 Broad Street, Suite 2500
       Newark, NJ 07102

       Counsel for Appellants
       DAVID M. VAUGHAN, ESQUIRE
        (ARGUED)
       Elarbee, Thompson & Trapnell, LLP
       800 International Tower
       229 Peachtree Street, NE
       Atlanta, GA 30303

       PATRICIA L. HARDAWAY, ESQUIRE
       Gay & Hardaway
       One Gateway Center
       Newark, NJ 07102

       Counsel for Appellee

       DONALD M. PALOMBI, ESQUIRE
       Office of Attorney General of
        New Jersey
       Department of Law & Public Safety
       Room CN112
       25 Market Street
       Trenton, NJ 08625

       Counsel for Amicus Curiae
       Attorney General of New Jersey

OPINION OF THE COURT

BECKER, Chief Judge.

This appeal in a diversity case arises from an overtime
pay dispute between a private employer and a number of its
employees. Its resolution turns primarily upon a
determination whether the New Jersey Commissioner of
Labor exceeded his authority when he promulgated a
regulation that excluded certain trucking industry
employees, including the plaintiffs here, from New Jersey's
statutory overtime pay requirement. The principal aim of
this regulation was to avoid job loss that might result if
New Jersey trucking industry employers were required--
unlike their counterparts in neighboring states--to pay
regular overtime wages to their employees. New Jersey's
statutory overtime provision, applicable to most private-
sector workers in the state, requires employers to pay

                               2
overtime at a rate of "1-1/2 times [each] employee's regular
hourly wage." N.J. Stat. Ann. S 34:11-56a4. By contrast,
the regulation at issue here requires only that trucking
industry employers pay their employees "an overtime rate
not less than one and one-half times the [state] minimum
wage." N.J. Admin. Code S 12:56-19.3. Because most
trucking industry employees, including the plaintiffs here
(with one minor exception), earn wages exceeding "one and
one-half times the [state] minimum wage," the regulation's
purported requirement that employers pay an overtime
premium is rendered superfluous.

Our reading of New Jersey's Wage and Hour Law, and of
New Jersey precedent in this area and in the administrative
law field, leads us to the conclusion that the Commissioner
exceeded his authority in enacting this regulation. The text
of the statute plainly limits the Commissioner to
promulgating wage orders only in those cases in which "a
substantial number of employees in any occupation or
occupations are receiving less than a fair wage." N.J. Stat.
Ann. S 34:11-56a8 (emphasis added). The Commissioner
made no such finding in this case, and in fact, implicitly
justified adoption of the challenged regulation on the
opposite ground, i.e., that the covered employees' wages
were too high, thereby threatening New Jersey's trucking
industry. Additionally, New Jersey's legislature has
explicitly declared the policy of the Wage and Hour Law to
be protecting employees from unfair wages and excessive
hours, and the state's courts have repeatedly affirmed the
protective nature of the statute. The trucking industry
regulation issued by the Commissioner contravenes not
only the plain language of the statute, but also this clearly
expressed policy.

Finally, New Jersey precedent in both the Wage and Hour
Law context and in the broader field of administrative law
supports our conclusion that the Commissioner's
promulgation of the challenged regulation exceeded his
authority. Because we find that the Commissioner exceeded
his authority in promulgating this regulation, we hold that
the defendant Loomis Fargo may not assert the regulation
as a defense to plaintiffs' claims for unpaid overtime wages.

                               3
We also conclude that the New Jersey good-faith defense
for failure to pay overtime wages may apply to the period at
issue here. The New Jersey good-faith defense requires both
that the employer acted in good faith and that it relied on
a written regulation, administrative practice, or
enforcement policy of the relevant state agency. For the
period prior to the enactment of the challenged regulation,
there is no evidence in this record that the defendant relied
on one of the enumerated sources in failing to pay the
statutorily required overtime. We will therefore remand to
the District Court for a determination whether the employer
acted on the basis of an administrative practice or
enforcement policy prior to the regulation's enactment.
Because the New Jersey statute requires that the
employer's good faith be based on an action or policy of a
state agency, the employer may not rely on remand, as it
did originally, on such sources as industry practice or
union acquiescence to meet its burden to prove the good-
faith defense for the pre-regulation period.

After the regulation was enacted, the employer would
seem to have relied on that regulation to justify its failure
to pay the statutory overtime rate. However, the record is
silent on the basis for the employer's refusal to pay the
statutory rate, and the District Court did not reach the
issue whether the defendant acted with the requisite good
faith in not paying the statutory rate. There may
conceivably be some other explanation for the refusal other
than good-faith reliance on the regulation, and hence we
will leave for the District Court to determine in the first
instance, following remand, whether the employer acted
with good faith after the Commissioner of Labor
promulgated the regulation at issue.

I. Procedural History

Since 1966, New Jersey's Wage and Hour Law, N.J. Stat.
Ann. SS 34:11-56a to -56a30, has required most employers
in the state to pay employees 1-1/2 times their regular
hourly wage rate for work in excess of forty hours per week.1
_________________________________________________________________

1. The Fair Labor Standards Act ("FLSA") similarly requires the payment
of time-and-a-half for overtime work. See 29 U.S.C. S 207(a)(1) (1994).

                               4
Plaintiffs are four current or former employees of defendant
Loomis Fargo (the successor to Wells Fargo Armored
Service Corp.), which, for all relevant time periods, has
failed to pay plaintiffs overtime pay according to the Wage
and Hour Law. On November 13, 1997, plaintiffs filed a
putative class action in New Jersey state court on behalf of
themselves and similarly situated Loomis Fargo employees,
seeking damages and equitable relief for Loomis Fargo's
failure to pay overtime.2 Loomis Fargo, a non New Jersey
citizen, removed the case to federal court.

Initially, Loomis Fargo moved to have the case dismissed
on preemption grounds, arguing that the FLSA and the
Federal Motor Carrier Act preempted New Jersey's
minimum wage and overtime law. The District Court denied
this motion. See Keeley v. Loomis Fargo & Co., 

517, 521 (D.N.J. 1998). Less than a month later, the
Magistrate Judge assigned to the case ordered the parties
to file cross-motions for summary judgment on the basis of
another defense put forth by Loomis Fargo, i.e., that its
employees were exempted from the overtime law's
requirements by a regulation promulgated by the New
Jersey Commissioner of Labor in 1996. See J.A. at 51. The
plaintiffs contended that the regulation exempting them
from the overtime provision's coverage was invalid, as the
Commissioner had no authority to enact it, and that they
were therefore entitled to 1-1/2 times their regular hourly
wages for any overtime work. The District Court held that
the regulation was valid, and that for the period prior to the
effective date of the regulation the defendant had acted with
a good-faith belief that it need not pay overtime, thereby
absolving it of any liability. See Keeley v. Loomis Fargo &
Co., 

, 451-52 (D.N.J. 1998).
_________________________________________________________________

However, there is no dispute that the plaintiffs are exempted from the
overtime requirements of the FLSA, see 

(1994 & Supp. II
1996), and we therefore confine our discussion to the New Jersey
overtime law.

2. As the New Jersey Wage and Hour Law has a two-year statute of
limitations, see N.J. Stat. Ann. S 34:11-56a25.1 (1988), plaintiffs'
claims
for past unpaid wages are limited to the period beginning November 13,
1995.

                               5
The District Court had jurisdiction over this diversity
case under 28 U.S.C. S 1332, while we have jurisdiction to
hear the appeal of the District Court's final order granting
summary judgment to defendant under 28 U.S.C. S 1291.
Our review of the District Court's order is plenary. We must
apply the same standard that the District Court was
required to apply, "construing all evidence and resolving all
doubts raised by affidavits, depositions, answers to
interrogatories, and admissions on file in favor of the non-
moving party." Iberia Foods Corp. v. Romeo, 

,
302 (3d Cir. 1998). However, in resolving the primary
disputed issue in this case--the validity of the state
regulation excluding plaintiffs from the overtime law's
coverage--we are faced with a purely legal issue. To the
extent that factual issues remain regarding Loomis Fargo's
good-faith defense, we will remand for the District Court's
determination of these issues in the first instance.

II. New Jersey Minimum Wage and Overtime Provisions

A. Statutory Provisions

New Jersey's overtime pay statute provides, in relevant
part:

        Every employer shall pay to each of his employees
       wages at a rate . . . 1-1/2 times such employee's
       regular hourly wage for each hour of working time in
       excess of 40 hours in any week, except this overtime
       rate shall not include any individual employed in a
       bona fide executive, administrative, or professional
       capacity or, if an applicable wage order has been
       issued by the commissioner under [S 34:11-56a16], not
       less than the wages prescribed in said order. . . .

        The provisions of this section for the payment to an
       employee of not less than 1-1/2 times such employee's
       regular hourly rate for each hour of working time in
       excess of 40 hours in any week shall not apply to
       employees engaged to labor on a farm or employed in
       a hotel or to an employee of a common carrier of
       passengers by motor bus or to a limousine driver who
       is an employee of an employer engaged in the business

                               6
       of operating limousines or to employees engaged in
       labor relative to the raising or care of livestock.

N.J. Stat. Ann. S 34:11-56a4 (1988 & Supp. 1999).

The New Jersey legislature, in establishing this overtime
pay requirement--and the related minimum-wage
requirement--explicitly outlined the policy behind its
enactment: "[T]o safeguard [workers'] 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." 

(1988).

Another provision of the law provides for appointment of
wage boards by the Commissioner of Labor, which boards
may recommend to the Commissioner the adoption of
regulations governing minimum wages and overtime. The
key provision provides, in full:

        If the commissioner is of the opinion that a
       substantial number of employees in any occupation or
       occupations are receiving less than a fair wage, he
       shall appoint a wage board as provided in [S 34:11-
       56a9] to report upon the establishment of minimum
       fair wage rates for employees in such occupation or
       occupations.

8. Section 34:11-56a9 outlines the
procedure by which wage board members are appointed
and establishes the number and nature (i.e., employer
representatives, employee representatives, etc.) of such
members. Upon a majority vote of a wage board's members,
the board may "recommend minimum fair wage rates" and
the "establishment or modification of the number of hours
per week after which the overtime rate established in
[S 34:11-56a4] shall apply and . . . the establishment or
modification of said overtime rate." 

13.

Following issuance of a wage board's report to the
Commissioner, notice and a public hearing must be held.
See 

Within ten days after the hearing,
the Commissioner must either approve or disapprove the
report:

                               7
       If the report is approved, the commissioner shall make
       a wage 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
       established. Such administrative regulations may
       include among other things, . . . overtime or part-time
       rates . . . .

16. In 1972, a provision was added to the
Wage and Hour Law that provides, in full, that "[t]he
provisions of this act shall be applicable to wages covered
by wage orders issued pursuant to [S 34:11-56a16]." 

4.2.

B. The Regulations

Pursuant to the foregoing statutory provisions, the
Commissioner has promulgated regulations that govern
wages and hours for workers in a number of occupations.
The regulation at issue in this case provides:

        Every trucking industry employer shall pay to all
       drivers, helpers, loaders and mechanics for whom the
       Secretary of Transportation may prescribe maximum
       hours of work for the safe operation of vehicles
       pursuant to 49 U.S.C. S 31502(b) an overtime rate not
       less than one and one-half times the minimum wage
       required pursuant to N.J.S.A. 34:11-56a4 and N.J.A.C.
       12:56-3.1.

N.J. Admin. Code S 12:56-19.3 (1998). This regulation was
proposed by the Commissioner on March 18, 1996, and
adopted on July 15, 1996, with an effective date of August
5, 1996. Defendant Loomis Fargo is a "trucking industry
employer," and the plaintiffs are all "drivers, helpers,
loaders [or] mechanics" covered by the reference to 49
U.S.C. S 31502(b). Therefore, there is no question that the
regulation applies to the present dispute and that, if it is
valid, it justifies defendant's payment of overtime wages

                               8
that are less than the statutory minimum, but that are
consistent with the regulation.

The commissioner has promulgated a number of other
regulations that govern various categories of employees and
employers. For example, one regulation exempts six
categories of workers from the minimum wage laws. 3 See
N.J. Admin. Code S 12:56-3.2 (1995). However, each of
these categories is already specifically exempted under the
statutory minimum wage provision. See N.J. Stat. Ann.
SS 34:11-56a4, -56a4.1. Other regulations in fact extend the
statutory overtime provisions, with certain modifications, to
employees who are otherwise exempted (by explicit
legislative mandate) from the statute's coverage. See N.J.
Admin. Code SS 12:56-11.3, -13.3. Additional regulations,
covering food service employees, air carrier employees, and
skilled mechanics, provide that these employees must be
paid overtime (as defined in the statute), with certain
adjustments relevant to their industries.4

None of the foregoing regulations exempt employees from
the statute's overtime or minimum wage provisions when
such an exemption does not appear in the statute itself. In
fact, from the parties' submissions and our own research,
it appears that the only categories of employees exempted
from the law's overtime requirements by regulation, but not
_________________________________________________________________

3. The exempted categories include certain full-time college students,
outside sales persons, motor vehicle sales persons, part-time home-
based childcare workers, certain minors, and employees at "summer
camps, conferences and retreats operated by any nonprofit or religious
corporation or association during the months of June, July, August and
September."

4. See N.J. Admin. Code S 12:56-14.3(a)(3) (1995) (providing, in the case
of food industry employees, that "[f]ood and lodging supplied to
employees shall not be included in wages for those hours worked in
excess of 40 hours per week"); 

(allowing the use of
compensatory time off instead of overtime pay for air carrier employees,
in certain circumstances); 

(1998) (providing that
skilled mechanics employed by auto dealers are exempt from the
overtime provisions only if they are paid on a flat or incentive-rate
basis
and are "guaranteed a basic contractual hourly rate [that] . . . must
include payment of time and one-half of the hourly rate for all hours
actually worked in excess of 40 hours per week").

                               9
also exempted by statute, are seasonal amusement
employees and trucking industry employees. The defendant
additionally cites the skilled mechanic regulation as
evidence that the Commissioner has the authority to
exempt groups of employees not explicitly exempted by the
statute. See Appellee's Br. at 14 & n.10. However, it fails to
note that the skilled mechanic regulation effectively
requires that these employees be paid at the statutory
overtime rate. See N.J. Admin. Code S 12:56-20.3(a) (1998)
(providing that skilled mechanics are "guaranteed a basic
contractual hourly rate [that] . . . must include payment of
time and one-half of the hourly rate for all hours actually
worked in excess of 40 hours per week").

Seasonal amusement employees are exempted from the
overtime provisions (but not the minimum wage provisions)
altogether. See 

(1995).5 Trucking industry
employees--the group at issue in this case--are partially
exempted, in that they are entitled to overtime pay of at
least 1-1/2 times the minimum wage, rather than 1-1/2
times their own hourly wage rate. See id.S 12:56-19.3
(1998). As noted above, however, because most trucking
industry employees receive regular wages that exceed 1-1/2
times the state minimum wage, the trucking industry
regulation effectively exempts these employees from any
overtime requirement and prevents them from receiving an
overtime premium.

III. Validity of the Trucking Industry Regulation

If the regulation at issue here is valid, it would provide a
complete defense to defendant's failure to pay overtime to
its employees for the period following its effective date of
August 5, 1996. (We discuss below defendant's possible
good-faith defense for its failure to pay overtime before--
and after--the regulation's enactment.) Therefore, our
primary task is to determine whether the trucking industry
_________________________________________________________________

5. The issue whether the seasonal amusement employee regulation is
valid is not before us. We therefore draw no inference from the
Commissioner's promulgation of this regulation exempting apparently
otherwise-covered employees from the statutory overtime provision.

                               10
regulation was validly promulgated by the Commissioner
under the terms of the New Jersey Wage and Hour Law.

A. New Jersey Case Law

Decisions of New Jersey's courts involving both the Wage
and Hour Law and other administrative regimes are
instructive in our determination whether the Commissioner
exceeded his authority in the present case. In the wage law
context, the Appellate Division of the New Jersey Superior
Court held in a pre-1966 case that the Commissioner of
Labor exceeded his authority in issuing a wage order
setting minimum wages for certain hotel employees, when
the statute at that time explicitly excluded hotel employees
from its coverage. See Hotel Suburban Sys., Inc. v.
Holderman, 

, 912 (N.J. Super. Ct. App. Div.
1956). Unlike the current Wage and Hour Law, the pre-
1966 statute did not establish minimum wages or
maximum hours, but conferred authority on the
Commissioner to promulgate wage and hour requirements
on an industry-by-industry basis, through the issuing of
wage orders. However, the statute explicitly excluded
certain occupations from the Commissioner's authority.

In Hotel Suburban, the court noted that the
Commissioner's exercise of his authority "is of necessity
restrained by the declared policy and spirit of the statute
and the criteria and standards therein laid down," and "the
rules and regulations and administrative action cannot
subvert or enlarge upon the statutory policy or . . . . deviate
from the principle and policy of the statute." 

(quoting Abelson's Inc. v. New Jersey State Bd. of
Optometrists, 

, 872 (N.J. 1950)). Further, the
court stated that the Commissioner could make regulations
"consistent with, but limited by, the provisions of the
statute," and when the statute was "clear and
unambiguous," the Commissioner could not amend, alter,
enlarge, or limit "the terms of the legislative enactment." 

concluded by noting that, even conceding the
validity of the Commissioner's policy arguments for
including the relevant employees under the minimum wage
act, "the authority to classify and exempt lies with the
Legislature; it is not an administrative or judicial function."

                               11


see also Silverman v. Berkson , 

, 1268 (N.J. 1995) ("The first question in this case is
one of agency authority. Government agencies have only
those powers the Legislature confers on them.").

Following passage of the 1966 Act, the Appellate Division
held that the Commissioner could issue a wage order for
occupations excepted from the statute's new minimum
wage provisions:

        Under N.J.S.A. 34:11-56a13 the wage board may
       recommend the "establishment" of an overtime rate in
       the particular occupation for which the wage board
       was appointed. Since overtime is provided for under
       N.J.S.A. 34:11-56a4 as to all occupations, save those
       specifically excepted, manifestly a wage board
       recommendation for the "establishment" of an overtime
       rate would have to be in one of the occupations
       excepted from the overtime provisions of N.J.S.A.
       34:11-56a4.

New Jersey State Hotel-Motel Ass'n v. Male, 

,
467 (N.J. Super. Ct. App. Div. 1969).

New Jersey courts have also frequently discussed the
scope of administrative agencies' authority in contexts other
than the Wage and Hour Law. In Medical Society v. New
Jersey Department of Law & Public Safety, 

(N.J. 1990), plaintiffs challenged a regulation promulgated
by the State Board of Physical Therapy. Before evaluating
that challenge, the state supreme court explained its scope
of review:

        An agency rule or regulation is presumptively valid,
       and anyone challenging such a rule or regulation has
       the burden of proving its invalidity. This presumption
       of validity attaches if the regulation is within the
       authority delegated to the agency and is not on its face
       beyond the agency's power. An administrative
       regulation, however, cannot alter the terms of a statute
       or frustrate the legislative policy. This Court,
       nonetheless, "places great weight on the interpretation
       of legislation by the administrative agency to whom its
       enforcement is entrusted."

                               12


(citations omitted).

The court noted that its "task is to discern the extent to
which the Legislature has delegated authority" to the
administrative agency, looking "initially [at] the terms of the
Act." 

court held that, in discerning
legislative intent, it "should try to give effect to every word
of the statute, and should not assume that the Legislature
used meaningless language." 

The court also
looked to legislative history, particularly differences
between the current statute and its predecessor. See 

In the end, it found the regulation at issue valid.
See 

The Appellate Division has also emphasized the relevance
of a statute's underlying policy, particularly one declared
explicitly by the legislature:

        In deciding whether a particular regulation is
       statutorily authorized, a court "may look beyond the
       specific terms of the enabling act to the statutory policy
       sought to be achieved by examining the entire statute
       in light of its surroundings and objectives." . ..
       Furthermore, declarations of public policy in enabling
       legislation can serve as sources of statutory
       authorization for regulations aimed at pursuing that
       policy.

E.I. du Pont de Nemours & Co. v. New Jersey Dep't of Envtl.
Protection & Energy, 

, 1319 (N.J. Super. Ct.
App. Div. 1995) (quoting New Jersey Guild of Hearing Aid
Dispensers v. Long, 

, 804 (N.J. 1978)).

Finally, the New Jersey Supreme Court recently
reiterated that an agency regulation must be "within the
fair contemplation of the delegation of the enabling statute."
New Jersey State League of Municipalities v. Department of
Community Affairs, 

, 27 (N.J. 1999) (internal
quotation omitted) ["State League"]. The court went on to
note, as it did in Medical Society, that a determination
whether the regulation is within the agency's delegated
authority must begin with " `the statute's plain meaning,' "
followed, if necessary, by analysis of "the legislative intent
underlying the statute." State 

(citation omitted).

                               13
In sum, as the excerpt above from Medical Society makes
clear, an administrative regulation "cannot alter the terms
of a statute or frustrate the legislative 

. In evaluating the regulation affecting trucking
industry employees, we must look at whether it is
consistent with the terms of the Wage and Hour Law, and
compare the regulation to the legislative policy behind the
law. We add only that New Jersey's law in this area is
entirely mainstream, reflecting fundamental principles of
statutory construction and administrative law.

B. The Trucking Industry Regulation

1. Text of the Statute

New Jersey's Wage and Hour Law provides: "Every
employer shall pay to each of his employees" the overtime
rate of 1-1/2 times the employee's own wage rate. N.J. Stat.
Ann. S 34:11-56a4 (emphasis added). The plain meaning of
"every employer" would appear to include trucking industry
employers. See State v. Kennedy, 

, 760 (N.J.
1998) (finding that the "plain meaning" of a statute
requiring restitution by "every person who violates this
section" was that every person who violates that law,
including one who pleads guilty, must pay restitution).

Two groups are explicitly exempted from the requirement
that "every employer" pay the statutory overtime rate. First,
certain types of workers (executive, administrative, and
professional) are excluded from the overtime provisions.
Second, employees in certain industries are exempted (farm
workers, hotel employees, etc.). Under the well-established
principle of statutory construction, expressio unius est
exclusio alterius, the legislature's explicit expression of one
thing--here, certain exceptions to the overtime requirement
--indicates its intention to exclude other exceptions from
the broad coverage of the overtime requirement. See
Township of Pennsauken v. Schad, 

, 1339
(N.J. Super. Ct. App. Div.) (invoking expressio unius maxim
to interpret coverage of a zoning ordinance), cert. granted,

(N.J. 1998), and cert. granted, 

(N.J. 1998). We note that the expressed exceptions in

                               14
the statute plainly do not include the one at issue here, the
trucking industry, evincing the legislature's intent to
include this industry within the statute's overtime coverage.
While the expressio unius maxim "can never override clear
and contrary evidences of [legislative] intent," Abdullah v.
American Airlines, Inc., Nos. 98-7055, -7056, 

, at *10 (3d Cir. June 23, 1999) (internal quotation
omitted), the inference we draw from the maxim in this case
is entirely consistent with the legislature's intent that we
discern from a plain reading of the statutory text and the
manifest policy behind the Wage and Hour Law.

In addition to the explicit exceptions in the law--which
do not include trucking industry employees--the legislature
has delegated authority to the Commissioner to constitute
wage boards and to adopt such boards' recommendations
regarding wages and overtime. Once again, however, our
examination of the plain language of the statutory provision
conferring this authority militates against the conclusion
that the Commissioner may exempt entire groups of
employees (or employers) from the statutory overtime
requirements.6 The relevant provision grants the
Commissioner authority to commence the wage order
process by appointing a wage board (only) "[i]f the
commissioner is of the opinion that a substantial number
of employees in any occupation or occupations are receiving
less than a fair wage." N.J. Stat. Ann.S 34:11-56a8
(emphasis added); see also 

("The
commissioner shall have the power, on his own motion, and
it shall be his duty upon the petition of 50 or more
_________________________________________________________________

6. While the regulation at issue here requires trucking industry
employers to pay at least 1-1/2 times the statutory minimum wage to
their employees (rather than 1-1/2 times the employees' own wage rates)
for overtime hours, the record discloses that virtually all trucking
industry employees have wage rates that exceed 1-1/2 times the
statutory minimum wage. The overtime requirement in the trucking
industry regulation is thus not a mere modification of the statutory
overtime rate, but is largely a nullification of that statutory
requirement.
It is for this reason that we speak in terms of trucking industry
employers being "exempted" or "excluded" from the overtime
requirements by the regulation, as their employees are, in practical
terms, paid the same wage rate for their overtime hours as they are for
their regular hours of work.

                               15
residents of the State, to cause the director to investigate
any occupation to ascertain whether a substantial number
of employees are receiving less than a fair wage.").

Section 34:11-56a8 is the only provision cited by the
defendant, and the only one we believe exists, that grants
the Commissioner the authority to appoint a wage board,
which is a necessary prerequisite to the issuing of a wage
order. See 

In this case, the
Commissioner noted that the wage board was appointed
because of uncertainty regarding whether trucking industry
employees were covered by the overtime provision and in
order to ensure that New Jersey trucking companies
remained competitive with out-of-state companies that were
not covered by their own states' overtime requirements. See
28 N.J. Reg. 3798, 3799 (1996). The plain language of
section 34:11-56a8, however, limits the Commissioner's
authority to appointing a wage board when, despite the
general protections of the wage and overtime law, a
substantial number of employees in an industry are
underpaid, a condition that concededly is not present here.7

In short, we find that the text of the New Jersey Wage
and Hour Law plainly covers "every employer" except those
explicitly exempted by the legislature. Further, the
Commissioner's authority to appoint wage boards, whose
reports might lead to the adoption of wage orders, is clearly
limited to those situations in which employees in the
relevant industry are being underpaid.

Before turning to an analysis of the policy underlying the
statute, we note that section 34:11-56a4.2 was added to
_________________________________________________________________

7. In its appellate brief, the defendant appears to admit as much: "Thus,
if there is a question as to whether a substantial number of employees
in a particular occupation are receiving less than a fair wage, the
Commissioner is empowered in several ways (and indeed, it may well be
his duty) to investigate the question." Appellee's Br. at 15 n.12
(emphasis added). While we believe this is an accurate statement of the
Commissioner's authority under the law, as explained in the text, we
reject defendant's argument that once a wage board is validly appointed
because of evidence that employees are being paid less than a fair wage,
the wage board can recommend that wages for these employees be
lowered.

                               16
the statute in 1972, providing plainly and without
exception that "[t]he provisions of [the Wage and Hour Law]
shall be applicable to wages covered by wage orders." N.J.
Stat. Ann. S 34:11-56a4.2. This clear and unequivocal
statutory command would be overridden if the
Commissioner could issue a wage order, such as the one
challenged here, that was inconsistent with a provision of
the act, such as the minimum wage or overtime provisions.
If the statutory overtime provision is applicable to the
trucking industry wage order, which would appear to be
compelled by section 34:11-56a4.2, that wage order cannot
reduce the overtime pay requirements to less than 1-1/2
times a worker's regular hourly wage.

2. Policy of the Statute

As noted above, New Jersey courts have held that the
Commissioner's authority to promulgate wage orders"is of
necessity restrained by the declared policy and spirit of the
statute," and "the rules and regulations and administrative
action cannot subvert or enlarge upon the statutory policy
or . . . . deviate from the principle and policy of the statute."
Hotel 

(internal quotation
omitted). Further, "[a]n administrative regulation . . .
[cannot] frustrate the legislative policy." Medical 

. Therefore, we must examine the wage
order and the justification given by the Commissioner for
its promulgation to determine whether the order is
consistent with the declared policy of the Wage and Hour
Law.

The primary rationale asserted by the Commissioner for
establishing a wage board to examine the trucking industry
and for adopting the board's recommendation was that"the
application of the [statutory] overtime provision could result
in the flight of business with the resulting reduction in
employment in this industry." 28 N.J. Reg. at 3799. By
contrast, the declared policy of the Wage and Hour Law is
"to safeguard [workers'] 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." N.J. Stat. Ann. S 34:11 56a. In a number of cases,

                               17
New Jersey courts have noted that the Wage and Hour Law
"is social legislation designed to correct abuses in
employment," 

, and that "[t]he
humanitarian and remedial nature of this legislation
requires that any exemption therefrom be narrowly
construed." Yellow Cab Co. v. State, 

, 873
(N.J. Super. Ct. App. Div. 1973).

We think it beyond dispute that a policy of protecting
local trucking businesses from competition (even if this will
redound to the benefit of these businesses' employees) is
fundamentally different from the stated legislative policy of
protecting workers from unfair wage levels "detrimental to
their health, efficiency and well-being." When the declared
policy behind a statute is to protect workers from abusive
practices regarding low wages and excessive hours, a
regulation excluding a group of workers from this protective
legislation's coverage, under the guise of keeping a local
industry competitive, "frustrate[s] the legislative policy,"
Medical 

, and usurps"the
authority to classify and exempt[, which] lies with the
Legislature," Hotel 

.

While we believe that the plain language of the statute
and its clearly stated policy inexorably lead to the
conclusion that the Commissioner does not have the
authority to exempt a group of employees, not otherwise
exempted by the statute, from the law's minimum wage or
overtime requirements, we also find support for our
conclusion in the major changes made to the law in 1966.
As noted above, under the pre-1966 law, no minimum
wages or overtime pay requirements existed in the statute
itself, while the Commissioner was explicitly authorized to
promulgate such protective devices for certain groups of
workers. In 1966, the law was fundamentally changed, and
minimum wage and overtime pay requirements were
established for all workers (with certain enumerated
exceptions) in the statute. Under the new law, the
Commissioner's authority changed substantially, from
promulgating wage orders for any group of workers not
explicitly excluded from that authority, cf. Hotel 

, to issuing wage orders that bring excluded
employees under the law's coverage, cf. 

467. There is, however, no indication that the legislature
intended, in making this change, to confer on the
Commissioner an entirely different authority to exempt
employees who would otherwise be included within the new
statute's broad coverage.8

3. Summary

In sum, we find that the plain language of the New Jersey
Wage and Hour Law requires, with certain enumerated
exceptions, that "every employer" in the state pay its
employees overtime wages at a rate of 1-1/2 times each
employee's regular wage rate. We also find that the plain
language of the section granting the Commissioner of Labor
authority to form a wage board and to subsequently issue
a wage order confers such authority only when the
Commissioner finds that "a substantial number of
employees in any occupation or occupations are receiving
less than a fair wage," something that the Commissioner
unquestionably did not find in the present case. Finally, the
policy of the Wage and Hour Law, declared by New Jersey's
legislature and reiterated by the state's courts, supports
our reading of the statute's text and our conclusion that
the Commissioner may not exempt a category of employees
from the statute's coverage when the legislature has not
done so itself or expressly authorized the Commissioner to
do so. This is clearly not a case in which the plain reading
of a statute conflicts with its underlying rationale. Cf. State

(rejecting a literal reading of a
statute that "would render the Act virtually meaningless").
_________________________________________________________________

8. In a similar vein, the defendant refers us to other states in which
wage
orders have been issued by administrative agencies exempting truck
drivers from overtime requirements, as support for its argument that the
New Jersey Commissioner had authority to do so as well. In these states,
however, the statutory provisions are more like the pre-1966 law in New
Jersey in that no general wage or hour requirements exist in the statutes
and broad discretion is vested in the administrative agencies to
promulgate rules or regulations regarding wages and hours. See, e.g.,
N.D. Cent. Code S 34-06-03 (1997) ("The commissioner . . . may
ascertain and prescribe: 1. Standards of hours of employment for
employees and what are unreasonably long hours . . .[and] 3. Standards
of minimum wages for employees in any occupation in this state.").

                                19
We therefore conclude that the Commissioner had no
authority to promulgate the regulation challenged by
plaintiffs, and hence defendant may not rely on the
regulation as a defense to plaintiffs' claims for unpaid
overtime wages that they are due under New Jersey's Wage
and Hour Law. We will accordingly reverse the District
Court's judgment in favor of defendant Loomis Fargo for the
period following the regulation's promulgation.

IV. The Good-Faith Defense

Although we conclude that defendant may not rely on the
trucking industry regulation to defend against plaintiffs'
claims for unpaid overtime wages, New Jersey's Wage and
Hour Law contains a good-faith defense that may apply to
this case. Because the District Court held that the
regulation was valid, it did not reach the issue of
defendant's good-faith defense after the regulation became
effective. However, it found that the good-faith defense did
apply to the period before the regulation's adoption. We will
remand for the District Court to revisit both of these issues
because, as we discuss below, we seriously question
whether defendant meets the requirements for the good-
faith defense prior to the regulation's adoption, and we
believe the District Court should have the opportunity in
the first instance to analyze the good-faith defense's
applicability after enactment of the regulation.

A. New Jersey's Good-Faith Defense

1. The Statutory Provision

The statutory provision that permits a good-faith defense
to a violation of the overtime statute provides as follows:

       [N]o employer shall be subject to any liability or
       punishment for or on account of . . . the failure of the
       employer to pay minimum wages or overtime
       compensation under this act, if he pleads and proves
       that the act or omission complained of was in good
       faith in conformity with and in reliance on any written
       administrative regulation, order, ruling, approval or

                               20
       interpretation by the Commissioner of the Department
       of Labor and Industry or the Director of the Wage and
       Hour Bureau, or any administrative practice or
       enforcement policy of such department or bureau with
       respect to the class of employers to which he belonged.
       Such a defense, if established, shall be a complete bar
       to the action or proceeding, notwithstanding, that after
       such act or omission, such administrative regulation,
       [etc.] . . . is modified or rescinded or is determined by
       judicial authority to be invalid or of no legal effect.

N.J. Stat. Ann. S 34:11-56a25.2 (1988).

The case law on New Jersey's good-faith defense is
sparse. The one case relied on by the District Court, a Law
Division case, appeared to ignore the requirement that good
faith be based on a written regulation, order, etc., and
found that the defendant's reliance on unrelated statutes
and industry practice constituted good faith. See State v.
Frech Funeral Home, 

, 1041-43 (N.J. Super.
Ct. Law Div. 1982).9

2. Analogous Federal Statutes

The federal wage and overtime statutes also include a
good-faith defense, and we believe that our precedents
interpreting the federal good-faith law are helpful in our
task of interpreting the state provision. The federal law
includes two good-faith provisions.10 One of these is
_________________________________________________________________

9. The District Court inadvertently cited Frech as a New Jersey Supreme
Court case. See 

. Were Frech actually a
state supreme court case, we would obviously adhere to its
interpretation of the state good-faith defense, even though the court
appeared to ignore a requirement of that defense. However, as Frech is
actually a trial court decision, it is at most persuasive but nonbinding
authority and we look to the plain language of the statute and our own
interpretation of the good-faith defense in predicting how the state
supreme court would apply the defense to the facts of this case.

10. The two good-faith defenses offer different protections. The first, 29
U.S.C. S 259, provides a complete defense to an action for unpaid wages,
while the second, 

gives a court discretion to award less than
the statutory amount of liquidated damages, but still requires the
defendant to pay compensatory damages for unpaid wages.

                                21
identical in all material respects to the New Jersey good-
faith statute. See 29 U.S.C. S 259(a) (1994); cf. Dole v. Odd
Fellows Home Endowment Bd., 

, 696 (4th Cir.
1990) (noting that the good-faith defense in S 259 requires
a "written regulation, order, ruling, approval, or
interpretation that could have been relied on"). The second
federal provision is less strict,11 requiring only that "the
employer [show] to the satisfaction of the court that the act
or omission giving rise to such action was in good faith and
that he had reasonable grounds for believing that his act or
omission was not a violation of the Fair Labor Standards
Act." 29 U.S.C. S 260 (1994).

While S 260 requires simply good faith and"reasonable
grounds," as opposed to the New Jersey law's requirement
of reliance on an administrative regulation, order, practice,
or policy, cases involving S 260 are still informative for their
interpretation of the "good faith" requirement. For example,
in Williams v. Tri-County Growers, Inc., this court held:

       The fact that an employer has broken the law for a
       long time without complaints from employees does not
       demonstrate the requisite good faith required by the
       statute. . . . [T]he employer must affirmatively establish
       that he acted in good faith by attempting to ascertain
       the Act's requirements.

, 129 (3d Cir. 1984). Under Williams, Loomis
Fargo's longstanding practice of not paying overtime and its
union's apparent acquiescence in this practice are
insufficient to establish good faith--even leaving aside the
existence (or lack thereof) of a regulation, order, practice, or
policy on which defendant relied.

More recently, we discussed the good-faith defense in
S 260 in Martin v. Cooper Electric Supply Co., 

(3d Cir. 1991). In Martin, we held that the district court
erred in finding that the employer had proved the good-
faith defense, citing three factors in particular. First,
_________________________________________________________________

11. Cf. 29 C.F.R. S 790.17(i) n.110 (1998) (noting that the fact that an
employer has no defense under S 259 would not preclude a court from
finding that the employer had met the requirements for the defense in
S 260).

                               22
reiterating the holding in Williams, we held that the
employer's "failure to inquire into the Act's overtime pay
requirements before [the agency's investigation] precludes a
determination that the company's subjective good faith was
reasonable." 

Second, we held that "the
employer's adherence to customary and widespread
industry practices that violate the Act's overtime pay
provisions is not evidence of an objectively reasonable good
faith violation." 

Finally, we rejected the district
court's contention that an employer could violate overtime
requirements as a " `reasonable and necessary' competitive
response[ ] to the `market for qualified employees.' " 

court). We noted that "[t]his reasoning
tends improperly to favor companies in industries where
economic conditions make violations of the Act most
attractive or pervasive." 

Martin, therefore, provide that reasonable
good faith is not shown when an employer does not inquire
about the law's requirements, simply follows an industry
trend of not complying with the law, or violates the law in
order to remain competitive. Although we will not assume
that New Jersey's courts would adopt this federal
jurisprudence unaltered, we note again that these cases
involved the federal good-faith defense with the lower
standard, while the language of the New Jersey statute is
virtually identical to that of the stricter of the two federal
good-faith provisions. The federal jurisprudence also seems
eminently sensible. Therefore, these cases likely present the
minimum standard that a New Jersey employer must meet
in order to enjoy the protections of that state's good-faith
defense to a failure to pay overtime.

3. Federal Regulations

Although federal wage and hour regulations obviously do
not apply to New Jersey's wage law, such regulations
contain explanations of each term in S 259 (each of which
terms also appears in the New Jersey good-faith provision),
and may be helpful in interpreting the New Jersey good-
faith defense. The regulations note that "the employer's
`good faith' is not to be determined merely from the actual
state of his mind." 29 C.F.R. S 790.15(a) (1998). Rather,

                               23
" `good faith' also depends upon an objective test--whether
the employer . . . acted as a reasonably prudent man would
have acted under the same or similar circumstances." 

also state, as we did in Williams and
Martin, that an employer has an affirmative duty to inquire
about uncertain coverage issues, such as might arise if
conflicting court decisions exist. See 

n.99 ("It is not intended that this defense shall
apply where an employer had knowledge of conflicting rules
and chose to act in accordance with the one most favorable
to him." (quoting 93 Cong. Rec. 4390 (1947) (statement of
Rep. Walter))). Such uncertainty appears to have existed
here, before the state regulation was promulgated. See 28
N.J. Reg. at 3799 ("[R]ecent court cases have raised an
issue as to whether overtime was required in New Jersey.").

Finally, the regulations make clear that an employer may
not assert the good-faith defense on the basis of the
relevant agency's non-action:

       A failure to act or a failure to reply to an inquiry on the
       part of an administrative agency is not a "regulation,
       order, ruling, approval, or interpretation" within the
       meaning of [S 259]. . . .

       . . . .

       . . . [While t]his should not be construed as meaning
       that an agency may not have administrative practices
       or policies to refrain from taking certain action as well
       as practices or policies contemplating positive acts of
       some kind . . . , there must be evidence of [the practice
       or policy's] adoption by the agency through some
       affirmative action establishing it as the practice or
       policy of the agency.

29 C.F.R. SS 790.17(f), 790.18(h).

In the absence of further guidance from the New Jersey
courts, we believe that federal courts faced with a party
asserting New Jersey's good-faith defense may consider the
above explication of S 259, the requirements of which are,
in all material respects, identical to those of the New Jersey
statute. In particular, the District Court in this case could

                               24
properly consider on remand the above discussion of"good
faith" and of S 259's "practice or policy" provision.

4. Summary

Although New Jersey caselaw is virtually nonexistent on
the requirements of that state's good-faith defense to a
failure to pay statutory overtime rates, we believe that the
plain text of the good-faith provision, along with our own
caselaw on the similar federal good-faith defenses and the
detailed federal regulations interpreting those defenses,
provide ample guidance in this area. First and foremost,
New Jersey's good-faith defense is clearly unavailable when
an employer is not relying on one of the enumerated
sources in the statute, such as a regulation, practice, or
policy of the state labor agency. Further, like the federal
good-faith defenses, New Jersey's law requires good-faith
reliance, and we have held that good faith is absent when
the employer fails to investigate a law's requirements, or
simply relies on a longstanding practice (of either the
employer itself or its industry) of failing to pay overtime or
on union acquiescence in such failure. We believe that, in
the absence of further guidance from New Jersey's appellate
courts, these standards should be used by federal courts
evaluating an employer's good-faith claims under New
Jersey law.

B. Defendant's Pre-Regulation Failure to Pay Overtime

In finding that defendant had adequately made out a
good-faith defense for the period prior to enactment of the
trucking industry regulation, the District Court pointed out
that defendant's collective bargaining agreement with the
relevant employees provided that, with certain exceptions
not applicable here, "there will be no premium pay for
hours worked over forty (40) in a workweek, and all such
hours will be paid at the employee's straight-time rate."

. Further, the court found
that "there is no indication that any trucking industry
employer in New Jersey has been required to pay its
employees one and one-half times their regular hourly rate
for overtime, either before or after the regulation was

                               25
issued." 

court relied on a declaration by
defendant's counsel that, during contract negotiations, "the
Company representatives present believed that the Motor
Carrier exemption of the [FLSA] preempted state law and
that the employees other than vault personnel were exempt
from any overtime pay requirements." 

n.10
(alteration in original).

For a number of reasons, we do not believe that these
factors provide sufficient support for a finding that the
defendant's failure to pay overtime prior to August 5, 1996,
fell under the good-faith defense of the New Jersey statute.
First and foremost, the statute clearly requires that the
good-faith belief be based on either (1) a written regulation,
order, ruling, approval or interpretation from one of the
designated state authorities or (2) an "administrative
practice or enforcement policy" of the relevant state
agencies. Yet neither the factors cited by the District Court
nor anything we can find in the record indicates that, prior
to August 5, 1996, defendant relied on a written document,
practice, or enforcement policy of the state labor
department in not paying its employees time-and-a-half for
overtime work.

Further, looking to Williams and Martin, and the federal
regulations, as providing an interpretative source for the
New Jersey statute, it is unclear what affirmative steps the
defendant took to ascertain the overtime law's requirements
before promulgation of the regulation. It apparently relied
primarily on industry practice, but if this is insufficient for
the lower standard in S 260, as Williams and Martin held, it
would almost certainly be insufficient for the higher
standard of S 259--and of New Jersey's good-faith defense.

Finally, we note that the good-faith defense was accepted
by the District Court at the summary judgment stage,
following minimal discovery. Further discovery may (or may
not) reveal that the defendant knew that it was violating
state law by not paying its employees overtime, but sought
to avoid the consequences of its actions by inducing the
union to agree to the overtime "waiver." Other ramifications
of the good-faith defense could emerge in discovery that

                               26
create issues that need eventual resolution by afinder of
fact.12

The defendant argues that plaintiffs may not now
contend that discovery is needed on the good-faith defense,
as they took the position before the District Court that
further discovery was not necessary. See Appellee's Br. at
21 n.18. However, the plaintiffs reasonably believed that
the District Court was ruling only on the validity of the
trucking industry regulation, and not on defendant's good-
faith defense, when they declined to request further
discovery. See J.A. at 51 (Magis. Order of July 1, 1998)
(ordering the "parties to cross-move for summary judgment
on validity of N.J.A.C. 12:56-19.3"). We therefore will
reverse the District Court's judgment in defendant's favor
for the period before the regulation's enactment. We also
leave it for the District Court on remand to determine what,
if any, discovery is necessary and appropriate for
adjudication of defendant's good-faith defense.

C. Defendant's Post-Regulation Failure to Pay Overtime

Because it found the regulation valid, the District Court
did not reach the issue whether the company had
demonstrated a good-faith defense for its post-regulation
failure to pay overtime. See 

n.9. It appears that, for its post-regulation conduct, the
company was relying on a written regulation to justify its
failure to pay overtime. However, the record is silent on this
issue, and therefore we will leave it for the District Court on
remand to determine whether defendant acted in good faith
in not paying its employees overtime following promulgation
of the regulation.

V. Conclusion

Defendant Loomis Fargo may not invoke the regulation
governing trucking industry employees as a justification for
its failure to pay overtime. We find that the Commissioner
exceeded his authority in enacting this regulation. If the
_________________________________________________________________

12. We note that the burden to plead and prove good faith is on the
defendant.

                               27
defendant relied in good faith on this regulation in its
failure to pay the statutory overtime rate, it may avoid
liability for the period following the regulation's enactment
(on August 5, 1996) under New Jersey's statutory good-
faith defense. We leave this issue for the District Court to
determine on remand. Finally, following any appropriate
discovery, the District Court should also revisit on remand
whether defendant was relying on an administrative
regulation, order, practice, or policy in not paying overtime
prior to August 5, 1996, as is required by New Jersey's
good-faith defense.

For the foregoing reasons, the judgment of the District
Court will be reversed, and the case remanded for further
proceedings consistent with this opinion.13
_________________________________________________________________

13. Plaintiffs belatedly argue on appeal that we should order the District
Court to remand this case to state court under the doctrine known as
Burford abstention. We believe that this argument has no merit. Burford
abstention applies when a federal court is asked to enjoin a state
administrative order that will injure the plaintiff (such as an order
granting an oil drilling permit to a competitor or denying the plaintiff
permission to discontinue an unprofitable line of business). As the
Supreme Court has put it:

       Where timely and adequate state-court review is available, a
federal
       court sitting in equity must decline to interfere with the
proceedings
       or orders of state administrative agencies: (1) when there are
       "difficult questions of state law bearing on policy problems of
       substantial public import whose importance transcends the result in
       the case then at bar"; or (2) where the "exercise of federal review
of
       the question in a case and in similar cases would be disruptive of
       state efforts to establish a coherent policy with respect to a
matter
       of substantial public concern."

New Orleans Pub. Serv., Inc. v. Council of New Orleans, 

,
361 (1989) (citation omitted); see also Grode v. Mutual Fire, Marine &
Inland Ins. Co., 

, 956 (3d Cir. 1993).

The present case primarily involves a claim for damages, not equitable
relief. Further, there are no "proceedings or orders of state
administrative agencies" at issue here, only state regulations of general
applicability. Cases implicating Burford abstention involve state orders
against an individual party that a federal-court plaintiff seeks to
enjoin.
Here, there is a state regulation that affects all trucking industry
employers, not a specific administrative order aimed at one party.
Therefore, abstention under Burford is clearly inappropriate.

                               28
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               29