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It’s been 38 years since the New Jersey Prevailing Wage Act was enacted, but a Nov. 21 Appellate Division ruling is the first published one to state how long a worker has to sue a boss for flouting the law. Jolting the assumption by many judges and lawyers that a two-year limit applies, the panel in Troise v. Extel Communications, A-5439-99, found the wage claim “clearly a claim for breach of contract or other economic harm” that is subject to the six-year period of Montells v. Haynes, 133 N.J. 282 (1993). Judges Philip Carchman, Stephen Skillman and Harold Wells III reversed Bergen County Superior Court Judge Daniel Mecca, who ruled the other way. The Prevailing Wage Act requires that those working on public construction projects be paid the prevailing wage in the locality for the type of work, as determined by the labor commissioner, N.J.S.A. 34:11-56.25 et seq. The law doesn’t state a time to sue but allows two years to seek an administrative remedy. Extel’s lawyer, Angelo Genova, says the correct analogy is not with contract claims but with claims for minimum and overtime wages under the Wage and Hour Law, N.J.S.A. 34:11-56a25.1, which allows two years to sue. “Being codified in the same place suggests the Legislature intended it be read in pari materia,” says Genova, a partner with Genova, Burns & Vernoia in Livingston, N.J., adding that the panel ignored the two-year limit on an employer’s duty to keep wage records. Genova warns that by expanding access to the courts for employee claims, Troise is “only going to further burden the courts with claims better suited for resolution in an administrative context.” His adversary, Santo Bonanno, a partner with Glen Rock, N.J.’s Struble Ragno Petrie Spinato Bonanno MacMahon & Conte, says the state Department of Labor, dismissed as a defendant in the case, supported the six-year time frame. Deputy Attorney General Pamela Gellert, the agency’s counsel, confirms that. Though only a few thousand dollars, plus attorneys’ fees, are at stake, the importance of the issue drew amicus on both sides: Cherry Hill, N.J., solo Steven Berkowitz for several unions and Warren Kasdan, a partner with Montclair, N.J.’s Schwartz, Tobia, Stanziale, Sedita & Campisano, for the Utility and Transportation Contractors Association of New Jersey. The appeal was a rematch of sorts. Last January, Burlington County Superior Court Judge Cynthia Covie found a six-year period in a case Berkowitz is handling for workers suing an employer represented by Schwartz, Tobia. Livingston v. Shore Slurry Seal Inc., L-2035-00. Berkowitz and the other side both applied to be amicus in the Troise appeal, he says.

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