Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Patterson, New Jersey, Firefighters IAFF Local 4577 have filed a grievance against the city of Patterson over the non-payment of overtime wages for work performed during the flooding associated with Hurricane Irene and Tropical Storm Lee last September. The grievance is similar to one filed last month by the Patterson Police union over the same issue. Between the two locals, the total amounts alleged to be owed exceed $200,000.
The payments appear to be mired in city council action. The council is said to be investigating the overtime and have asked for additional information to “authenticate the additional hours worked.”
Most states have a statute that specifies the time frame that an employer has to pay wages to employees following days that the work is performed. In New Jersey, the law reads as follows:
34:11-4.2. Time and mode of payment; paydays
Except as otherwise provided by law, every employer shall pay the full amount of wages due to his employees at least twice during each calendar month, on regular pay days designated in advance by the employer…. The end of the pay period for which payment is made on a regular payday shall be not more than 10 working days before such regular payday, provided that if the regular payday falls on a nonwork day payment shall be made on the preceding work day.
Basically, overtime wages must be paid within ten days from the closure of the next pay period following the hours worked. The law allows an employer to withhold wages that are disputed:
34:11-4.8. Dispute over amount of wages
a. In case of a dispute over the amount of wages, the employer shall pay, without condition and within the time set by this act, all wages, or parts thereof, conceded by him to be due, leaving to the employee all remedies to which he might otherwise be entitled, including those provided under this act, as to any balance claimed.
b. The acceptance by an employee of a payment under this section shall not constitute a release as to the balance of his claim and any release required by an employer as a condition to payment shall be in violation of this act and shall be null and void.
However, in the event that an employer is found to wrongfully withhold funds, the penalties are substantial – and include a criminal offense. Take a look:
34:11-4.10. Violations
Any employer who knowingly and willfully violates any provision of 34:11-4.1 et seq. shall be guilty of a disorderly persons offense and, upon conviction for a violation, shall be punished by a fine of not less than $100 nor more than $1,000. Each day during which any violation of this act continues shall constitute a separate and distinct offense. …
When you consider that each employee who was wrongfully denied overtime is a separate violation, and that each day between September and December is a separate violation, the cost to Patterson could be enormous – if they are found to have “knowingly and willfully” violated the statute. While at present the case is a contractual grievance (the local alleges the collective bargaining agreement was violated), New Jersey statutes authorize the Commissioner of Labor to investigate violations, and proceed against violators.
