Keeley v. Loomis Fargo & Co

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Precedential or Non-Precedential: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., 11 F. Supp.

2d 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., 42 F. Supp. 2d 442, 451-52 (D.N.J. 1998).

_________________________________________________________________

However, there is no dispute that the plaintiffs are exempted from the

overtime requirements of the FLSA, see id. S 213(b)(1) (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, 150 F.3d 298,

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." Id. S 34:11-56a (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.

Id. S 34:11-56a8. 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." Id. S 34:11-56a13.

Following issuance of a wage board's report to the

Commissioner, notice and a public hearing must be held.

See id. S 34:11-56a15. 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 . . . .

Id. S 34:11-56a16. 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]." Id.

S 34:11-56a4.2.

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"); id. S 12:56-15.3(a) (allowing the use of

compensatory time off instead of overtime pay for air carrier employees,

in certain circumstances); id. S 12:56-20.3(a) (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 id. S 12:56-12.3 (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, 125 A.2d 908, 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." Id. at 911

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

Optometrists, 75 A.2d 867, 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." Id.

The court 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

Id. at 913-14; see also Silverman v. Berkson , 661 A.2d

1266, 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, 251 A.2d 466,

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, 575 A.2d 1348

(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

Id. at 1352 (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." Id. Further, the 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." Id. at 1353. The court also

looked to legislative history, particularly differences

between the current statute and its predecessor. See id. at

1353-54. In the end, it found the regulation at issue valid.

See id. at 1355.

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, 661 A.2d 1314, 1319 (N.J. Super. Ct.

App. Div. 1995) (quoting New Jersey Guild of Hearing Aid

Dispensers v. Long, 384 A.2d 795, 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, 729 A.2d 21, 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 League, 729 A.2d at 28

(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 policy." 575 A.2d at

1352. 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, 705 A.2d 757, 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, 704 A.2d 1337, 1339

(N.J. Super. Ct. App. Div.) (invoking expressio unius maxim

to interpret coverage of a zoning ordinance), cert. granted,

718 A.2d 1210 (N.J. 1998), and cert. granted, 718 A.2d

1211 (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, 1999 WL

415525, 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 id. S 34:11-56a7 ("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 id. S 34:11-56a16. 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 Suburban, 125 A.2d at 911 (internal quotation

omitted). Further, "[a]n administrative regulation . . .

[cannot] frustrate the legislative policy." Medical Society,

575 A.2d at 1352. 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," Male, 251 A.2d at 467, and that "[t]he

humanitarian and remedial nature of this legislation

requires that any exemption therefrom be narrowly

construed." Yellow Cab Co. v. State, 312 A.2d 870, 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 Society, 575 A.2d at 1352, and usurps"the

authority to classify and exempt[, which] lies with the

Legislature," Hotel Suburban, 125 A.2d at 914.

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 Suburban,

125 A.2d at 912, to issuing wage orders that bring excluded

employees under the law's coverage, cf. Male, 251 A.2d at

18

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

League, 729 A.2d at 29 (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, 448 A.2d 1037, 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 Keeley, 42 F. Supp. 2d at 452. 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, id. S 260, 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., 912 F.2d 689, 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.

747 F.2d 121, 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., 940 F.2d 896

(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." Id. at 909. 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." Id. at 910. 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.' " Id.

(quoting district 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." Id.

Williams and 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." Id.

The regulations 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 id. S 790.15(b); id.

S 790.15(d) 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."

Keeley, 42 F. Supp. 2d at 452. 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." Id. Finally, the 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." Id. at 452 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 Keeley, 42 F. Supp. 2d at 451

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, 491 U.S. 350,

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

Inland Ins. Co., 8 F.3d 953, 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