# Allen v. Fauver > Supreme Court of New Jersey · April 10, 2001 · 167 N.J. 69 URL: https://www.frixlaw.com/law-library/cases/9703597 ## Case - **Full name:** Michael Allen, David Abdus-Sabur, Tajuddin Abur-Raóof, Laniece Allison-Brown, Jerry Alston, Richard Anderson, Renee Arvin, Richey Askew, Daniel Ates, Joe Baker, Sr., Raymond Ballester, Hataa Baraka, Todd Barnett, Angelo Bianchi, David Blackburn, Maurice Boatner, Dennis Bogdan, Reginaldo Bosque, Milton Boyd, Larry Brantley, John Burns, Nathaniel Bush, Ellen Butler, Eddie Cannon, Pasquale Capozzoli, Jerome Carroll, Yvette Carroll, John Casalinho, Gregory Castillo, Caprice Chaves, Henry Cherry, Lizzie Mae Chislum, Joanne Clark, Christopher Coats, Leonel Coelho, Tiowandolynn Coleman, Beverly Collins, Lance Collins, Shelby Cowans, Celeste Cunningham, Marlon Curtis, Alexander Dalmida, Patricia Daniels, Bruce Davis, Edward Davis, John Delguercio, Thomas Dixon, Evonne Dock, Carlton Easton, Cleveland Eatman, Sandra Eley, Frank Evaristo, Andre Fleming, Deborah Fluker, Deborah Foster, Andre Frazier, Freddie Frazier, Jr., James Frazier, Lloyd Fuller, Jr., Ben Gamble, David Garry, Mark Gaunt, Arthur Ray Gibson, Michael Gilbert, Joan Gilmore, Harry Gonzalez, Nelson Gonzalez, Gail Good, Gerald Gordon, Dawn Grant, Luther Gregg, Brandon Gregory, Robin Grier, Gilves Grrington, Pamela Hailstork, David Hammonds, James Hamilton, Billy Harris, Merri Harris, Jose Hernandez, Anthony High, Dana Hines, Benita Holmes, Timothy House, Eva Huguenin, Janet Hunter, David Jackson, Lorrie Jackson, Terrance Jackson, Jose Jimenez, Manuel Jimenez, Darris Johnson, Monique Johnson-Holley, Dwayne Jones, Jimmie Jones, Kenneth Jones, Totsian Jones, Alton Joyner, Stanley Judson, William Jungman, James Kennedy, Michael Kennedy, Robert Kent, Edward Kitchen, Jr., Darrell Kornegay, Kathy Lamberth, Leonard Lamberth, Andre Larkins, Alvin Lewis, Anthony Lindsey, Christine Lindsay, Albert Lofton, James Lowery, Jose Lugardo, Stacey Mallory, Andre Manning, Timothy Maye, Brian McCallum, Marta McClain, Toni McCoy, Chandar McDaniel, Brian McGill, Chester Megill, George Migner, Derrick Mike, David Miller, Monica Miller, Donovan Mitchell, Louis Morena, Darryl Morgan, Clark Morton, William Nealis, Charles Newsome, Benjamin Newton, Beverly Nottingham, Lamont Nutter, Manuel Oliveira, Marquis Owens, Antonio Pereira, Ronnie Perry, Darwin Phillips, Pedro Pozo, Salahuddin Rabb, Hakiem Randall, Willie Rayford, Harold Reynolds, Deborah Revis, Brenda Richardson, Harold Richardson, Jason Richardson, Molly Richardson, Timothy Rigsby, Anthony Roberts, Desiree Robertson, Emmanuel Rodriquez, Luis Rosas, Judith Schlachter, Gloria Schwinger, Ruth Saffold, James Sanders, Shawn Scott-Thomas, Minnie Small, Cedric Seymour, Lenore Simon, Andre Smith, Garven Smith, Kent Smith, Leroy Smith, Carlos Soares, Joseph Sorbino, Edwin Soto, Gerald Sowa, Janelle Spearman, Joseph Spotswood, John Stafford, Tiare Stephenson, Sean St. Paul, Alphonso Strauss, Edward Sullivan, Anthony Swepson, Richard Tattoli, Derek Thomas, Vincent Thomas, Genaro Thompson, Jeffrey Thompson, Pernell Thompson, Langston Tisdale, Ronald Tucker, Calvin Turner, Terrell Turner, Larry Tyson, John Vatasin, Moises Vazquez, William Vick, Samuel Webster, Tyrone Webster, Eddie Weldon, Fredrick White, Brian Williams, Eric Williams, Kenneth Williams, Jada Wilson, Harolyn Wingneblett, Willie Winns, Kecia Wright and Carlton Young, on Behalf of Themselves and All Other Persons Similarly Situated, Plaintiffs-Appellants, v. William H. Fauver, Christine Todd Whitman and State of New Jersey Department of Corrections, Defendants-Respondents - **Court:** Supreme Court of New Jersey - **Decided:** April 10, 2001 - **Citations:** 167 N.J. 69; 768 A.2d 1055; 6 Wage & Hour Cas.2d (BNA) 1741; 2001 N.J. LEXIS 341 - **Precedential status:** Published - **Opinion:** Concurring in part by Long - **Judges:** Long - **Cited by:** 30 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9703597 ## How later opinions describe it (automated extraction) - holding that suits under the Fair Labor Standards Act (FLSA), 29 U.S.C.A. §§ 201 to 219, are precluded against the State because the Legislature has not 14 A-3357-12T3 consented to be sued under the FLSA - holding that suits under the Fair Labor Standards Act (FLSA - stating that immunity from consequential damages is designed to shield the State from losses that "it could not foresee or for which it could not plan" - explaining that sovereign immunity will not bar suit if there is “express legislative consent to suit” - holding that a waiver of governmental immunity must be clearly expressed in a statute ## Opinion text LONG, J., concurring in part and dissenting in part. Plaintiffs are employees of Northern State Prison in Newark who have been denied overtime for the many occasions on which their responsibilities required them to remain at work for periods up to 15 minutes beyond the end of their shifts. They have sued the State for “incidental” overtime under federal and state statutes that they argue apply to their employment. I fully subscribe to the majority’s conclusion that the New Jersey State Wage and Hour Law, N.J.S.A 34:11-56a, -a30, by its very terms, excludes the State of New Jersey from the definition of “employer,” N.J.S.A. 34:11-56a1(g), and that plaintiffs have no claim against the State based on that enactment. It is in connection with the question of the plaintiffs’ right to sue for benefits under the Fair Labor Standards Act, (FLSA), 29 U.S.C.A. § 201 , -19, that I part company from my colleagues. In Alden v. Maine, 527 U.S. 706 , 119 S.Ct. 2240 , 144 L.Ed.2d 636 (1999), the United States Supreme Court was faced with the question of the liability of a state for violations of the FLSA. The Supreme Judicial Court of Maine affirmed a trial court’s dismissal of the complaint on the basis of sovereign immunity. Id. at 712 , *79 119 S.Ct. at 2246 , 144 L.Ed.2d at 652 . The United States Supreme Court also affirmed, holding that Congress could not “subject nonconsenting States to private suits for damages in state courts,” ibid., because of the states’ inherent sovereignty that is protected by the United States Constitution. Id. at 714 , 119 S.Ct. at 2247 , 144 L.Ed.2d at 653 . According to the Supreme Court in Alden , legislation like the FLSA may not override that constitutional immunity although such immunity can be waived by consent. Id. at 755 , 119 S.Ct. at 2267 , 144 L.Ed.2d at 679 . The Court ultimately held that, although Maine had consented to waive its immunity to various types of suits, it had not consented to the one brought by those government employees under the FLSA. Id. at 758 , 119 S.Ct. at 2268 , 144 L.Ed.2d. at 680-81. Indeed, that state had, by statute, explicitly excluded recourse to the courts for overtime pay. Alden v. State, 715 A.2d 172, 175 (Me.1998) (citing 26 M.R.S.A. § 664(3) (Supp.1997)). Here, the relevant question is whether New Jersey has consented to plaintiffs suit under the FLSA. The answer is yes. In P, T & L Constr. Co. v. Comm’r, Dep’t of Trans., 55 N.J. 341, 346 , 262 A.2d 195 (1970), we held that the State would no longer be immune from suit for breach of contract but would be required to answer “in its own courts on contracts it authorized.” In 1972, the Legislature codified the P,T & L decision in the New Jersey Contractual Liability Act, N.J.S.A. 59:13-1, -10. That statute waives sovereign immunity for contractual obligations assumed by the State. It provides in relevant part: The State of New Jersey hereby waives its sovereign immunity from liability arising out of an express contract or a contract implied in fact and consents to have the same determined in accordance with the rules of law applicable to individuals and corporations; provided, however, that there shall be no recovery against the State for punitive or consequential damages arising out of contract nor shall there be any recovery against the State for claims based upon implied warranties or upon contracts implied in law. [N.J.S.A. 59:13-3.] The point of that statute is to treat the State like a private litigant in matters arising out of breach of contract. N.J.S.A. 59:13-1, -10 cmt. The only limit on the waiver is for contracts that could *80 expose the State to unforseen risks, such as, for example, a contract implied in law. Ibid. That is also the rationale underlying the exclusion from the statutory waiver of punitive and consequential damages and implied warranties. Ibid. Each of those excluded categories could subject the State to losses that it could not foresee or for which it could not plan. By contrast, the Contractual Liability Act broadly waives immunity for express contracts or those implied in fact, presumably because the State should be required to live up to clear promises just like any other litigant and because, by entering into a contract, the State can foresee the financial outcome in case of breach. Here, Art. XXIX of the Collective Bargaining Agreement between plaintiffs and defendants governs the subject of incidental overtime. It states: Where incidental overtime assignments are made, records of such time worked shall be kept and may be scheduled as compensatory time on an hour for hour basis unless the total hours worked in a payweek in which they occur require compensation at time and one-half in accordance with the Fan Labor Standards Act. That express provision makes it unnecessary for us to grapple with the more difficult question of whether an otherwise silent agreement incorporates existing applicable statutes under the “implied in fact” doctrine. Saffore v. Atlantic Cas. Ins. Co., 21 N.J. 300 , 121 A.2d 543 (1956); Fidelity & Cas. Co. v. Hill Constr. Co., 11 N.J. Misc. 58 , 164 A. 16 (Dist.Ct.1933); 11 Williston on Contracts § 30:19 (4th ed.1999). What we are faced with in this case is an express contract specifically stating that the FLSA standard for recompensing incidental overtime shall govern. The majority’s suggestion that that is a “statutory” claim and not a contract claim misapprehends the nature of .the State’s undertaking here and miscasts simple contract shorthand as some other legal form. This contract falls squarely within the waiver contemplated by the Contractual Liability Act because it defines the duty the State is willing to undertake and, concomitantly, puts the State on notice of the *81 potential sequellae of a breach. Unlike the position of the state of Maine in Alden, supra, New Jersey clearly waived immunity against suits on express contracts such as the one at issue here. It could not have done so more clearly. In sum, there is no basis for the majority’s conclusion that sovereign immunity is a bar to plaintiffs’ claims and that further legislative action should be required to waive that immunity. The Legislature already has acted by passing the Contractual Liability Act, and the Court’s reluctance to give effect to that statute and to the express terms of this Collective Bargaining Agreement is indeed mystifying. I would reverse and remand the case for trial on the FLSA issue. Justice STEIN joins in this opinion. For affirmance — Chief Justice PORITZ and Justices COLEMAN, VERNIERO and LaVECCHIA — 4. Concur in part/dissent in part — Justices LONG and STEIN — 2 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9703597. Public record. Not legal advice.