ERIC K. KARANJAWALA v. ASSOCIATED HUMANE SOCIETIES, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3560-08T23560-08T2

ERIC K. KARANJAWALA,

Plaintiff-Respondent/

Cross-Appellant,

v.

ASSOCIATED HUMANE SOCIETIES, INC.,

Defendant-Appellant/

Cross-Respondent.

________________________________________________________________

 

Argued January 21, 2010 - Decided

Before Judges Sapp-Peterson and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-539-05.

Harry Jay Levin argued the cause for appellant/cross-respondent (Levin Cyphers, attorneys; Mr. Levin and Kelly Hamilton Uliano, on the briefs).

Michael W. Hoffman argued the cause for respondent/cross-appellant (Maselli Warren, P.C., attorneys; Mr. Hoffman, on the briefs).

PER CURIAM

Plaintiff Eric K. Karanjawala brought this action pursuant to the New Jersey Wage and Hours Law, N.J.S.A. 34:11-56(a)(4) and (5), alleging that he was entitled to be paid overtime for 182.5 night shifts while he was employed by defendant Associated Humane Societies (AHS) and residing at their facility, Popcorn Park Zoo, in Lacey Township. Defendant appeals from the judgment entered in plaintiff's favor. Plaintiff cross-appeals, challenging the amount of the award of attorney's fees. We affirm.

Popcorn Park Zoo regularly houses domesticated animals such as cats and dogs as well as non-domesticated animals such as tigers, lions, bears, monkeys, deer and various birds. Although Karanjawala began his employment with AHS in September 1991, the parties stipulated that the litigation was limited to the period of December 9, 2002 to May 3, 2004.

AHS maintained three living units for employees at the zoo. Employees were not required to reside at the facility. In addition to providing a benefit to the employees, AHS derived a benefit from having employees in residence to attend to security issues involving the animals.

Karanjawala resided in one of these units during the relevant time period. The living unit was approximately ten feet by twelve feet. It had a bathroom with a shower stall, sink and toilet, and, within the living space, a refrigerator, microwave oven, television, computer, phone line and a video security monitor.

The employees who resided on-site did not pay rent or utilities but were required to work night duty shifts. As a resident employee, Karanjawala worked forty-eight hours per week as an animal control officer and three night shifts per week. The parties stipulated that he performed a total of 182.5 night shifts during the relevant time period.

Night duty began at 6:00 p.m. and ended at 9:00 a.m. It consisted of three shifts that rotated among the resident employees during the week. The first shift required the employee to answer calls to respond to emergency animal control issues by dispatching another resident employee, who was working the second shift, and to respond to the off-site emergency as an animal control officer. The employee working the second shift was also required to answer the telephone. Resident employees working the third shift did not have telephone duty; they were required to personally respond when needed to the off-site emergency animal control issue. Karanjawala testified that during the third shift, he "could be anywhere," since he had a beeper and a cell phone.

Resident employees were also required to attend to animal issues presented by individuals who came to the zoo after normal business hours and to contact the police if the security monitors indicated the presence of a trespasser. While on night duty, resident employees were expected to remain on the premises for the entire evening. Karanjawala called John Bergmann, general manager of the zoo, for permission to leave the zoo when he wanted to do a personal errand during his night duty shifts. In a certification, Bergmann stated that employees who left the premises while on night duty were required to be available by beeper in the event a call came in and could ask another resident employee to attend to the telephone in their absence.

AHS did not pay resident employees an hourly rate or overtime for night duty shifts. Instead, AHS paid such employees a fifteen-dollar flat rate for each off-site response, without regard to the amount of time required to respond to the emergency. David Sharpe, who was a resident employee with the same job description and duties as plaintiff, testified that the time required for such responses to the off-site calls averaged one hour but varied from five minutes to three hours. Karanjawala's pay stubs reflect payment for the equivalent of one hundred four off-site emergency calls during the period from January 1, 2003 through April 18, 2004.

When Karanjawala moved off-site in April 2004, he continued to have night duty. Telephone calls to the zoo were forwarded to his cell phone for response and he was paid the same fifteen-dollar flat rate per call.

In his extensive written opinion, Judge Steven F. Nemeth made detailed findings regarding credibility, concluding that Karanjawala was "a credible witness in all important respects" and "more consistent and straightforward" than defense witnesses. The court summarized its findings regarding two of the three night shifts:

[T]he court finds the plaintiff has proven by a preponderance of the credible evidence that on the two night shifts where he was mandated to answer the phone he was required by the employer to remain at the zoo, unless he was responding to an offsite call, or unless he was granted permission to perform a necessary personal errand. The court also finds that while on phone duty plaintiff rarely left the premises for such errands, and he did so only after receiving permission. The plaintiff could not, and did not, leave the zoo to participate in leisure, social, or recreational pursuits.

The court concluded that Karanjawala was "engaged to be waiting" when he worked the two night shifts that required him to answer the telephone at the zoo and observe the security monitor as necessary and therefore was entitled to receive overtime for the those shifts.

As to the third shift, in which Karanjawala was only required to respond to calls off-site, the court found that plaintiff had failed to prove that he was required to remain at the zoo and had, indeed, testified that he could be anywhere on that shift. The court observed that his duty on that shift while he resided at the zoo was analogous to the night duty he performed when he resided off-site. The court concluded that when Karanjawala worked that shift, he was "waiting to be engaged" and, therefore, not entitled to receive overtime for those shifts.

The court entered judgment in favor of Karanjawala in the amount of $45,757.09, which sum included an award of $22,875 in counsel fees. In its appeal from the judgment, AHS presents the following issues:

POINT I

THE COURT FAILED TO TAKE INTO CONSIDERATION THAT THE EMPLOYER'S FACILITY WAS PLAINTIFF'S SOLE PLACE OF RESIDENCE BASED ON A VOLUNTARY DECISION SEPARATE AND APART FROM HIS JOB DESCRIPTION AND DID NOT APPLY THE CORRECT STANDARD OF LAW -- THE DURATION OF UNINTERRUPTED PERIODS OF LEISURE DURING WHICH THE EMPLOYEE COULD ENGAGE IN THE NORMAL ACTIVITIES.

A. THE COURT FAILED TO CONSIDER THAT THE EMPLOYEE WAS AT HOME DURING THE NIGHT PHONE SHIFTS AND FREE TO ENGAGE IN NORMAL ACTIVITIES BECAUSE THE EMPLOYER'S FACILITIES WAS THE EMPLOYEE'S VOLUNTARY PLACE OF RESIDENCE SEPARATE AND APART FROM HIS JOB DESCRIPTION.

B. THE LOWER COURT'S FINDING OF FACT THAT THE PLAINTIFF WAS RESTRICTED TO HIS RESIDENCE AT THE EMPLOYER'S FACILITY DURING THE NIGHT TIME PHONE SHIFT CONFLICTED WITH PLAINTIFF'S OWN TESTIMONY THAT DEMONSTRATED PLAINTIFF HAD SUBSTANTIAL FREEDOMS THAT COULD HAVE AFFORDED HIM LENGTHY PERIODS OF LEISURE.

C. THE CORRECT QUESTION OF LAW THAT THE COURT FAILED TO APPLY WAS WHETHER THERE WERE LONG PERIODS OF LEISURE DURING WHICH THE PLAINTIFF COULD ENGAGE IN NORMAL ACTIVITIES.

POINT II

THE TRIAL COURT'S AWARD FOR DAMAGES TO PLAINTIFF WAS SPECTULATIVE AND THE COURT'S METHOD FOR CALCULATING DAMAGES LACKED ANY FACTUAL SUPPORTING BASIS.

POINT III

THE TRIAL COURT ERRED BY ALLOWING HEARSAY EVIDENCE TO BE USED AS AN ADOPTIVE ADMISSION THROUGH THE USE OF THE REPORT DRAFTED BY THE EXPERT, NANCY FURSTENBURG, CPA, WHO WAS RETAINED BY AHS BUT DID NOT APPEAR IN COURT TO TESTIFY.

POINT IV

WITHOUT AN ADMISSIBLE EXPERT REPORT THE AWARD WAS SPECULATIVE AND LACKED ANY FIRM BASIS FOR CALCULATION, IT WAS ERROR FOR THE COURT TO AWARD PRE-JUDGMENT INTEREST BASED ON THE TENUOUS AWARD FOR DAMAGES.

In his cross-appeal, Karanjawala challenges the amount of the counsel fee award.

After carefully reviewing the record, briefs and arguments of counsel, we are satisfied that none of these arguments have any merit and affirm, substantially for the reasons articulated by Judge Nemeth in his extensive written opinion.

An employer's obligation to pay overtime wages is a component of New Jersey's Wage and Hour Law (NJWHL), N.J.S.A. 34:11-56a to -56a30. See Marx v. Friendly Ice Cream Corp., 380 N.J. Super. 302, 309 (App. Div. 2005). The statute's remedial purpose "dictates that it should be given a liberal construction." N.J. Dep't of Labor v. Pepsi-Cola Co., 170 N.J. 59, 62 (2001); see also Yellow Cab Co. v. State, 126 N.J. Super. 81, 86 (App. Div. 1973), certif. denied, 64 N.J. 498 (1974).

AHS does not argue that it was relieved from the obligation to pay Karanjawala overtime because it falls within any of the exemptions set forth in N.J.S.A. 34:11-56a4 or because the good faith defense afforded by N.J.S.A. 34:11-56a25.2 applies. The thrust of AHS's challenge to the trial court's conclusion that Karanjawala was entitled to overtime for the two shifts that required him to be on-site is that because he was at home during those periods, the determinative question should be whether he had "long periods of uninterrupted leisure during which [he could] engage in the normal activities of living" pursuant to N.J.A.C. 12:56-5.7, which states:

"On-call" employees may be required by their employer to remain at their homes to receive telephone calls from customers when the company office is closed. If "on-call" employees have long periods of uninterrupted leisure during which they can engage in the normal activities of living, any reasonable agreement of the parties for determining the number of hours worked shall be accepted. The agreement shall take into account not only the actual time spent in answering the calls but also some allowance for the restriction on the employee's freedom to engage in personal activities resulting from the duty of answering the telephone.

It is argued that Karanjawala had such long periods of uninterrupted leisure and that, therefore, the arrangement in which he was paid a flat fee of fifteen dollars per off-site response should control. This argument is unpersuasive because the fifteen dollar flat fee failed to "take into account . . . the actual time spent in answering the calls" and did not provide any "allowance for the restriction on the employee's freedom to engage in personal activities resulting from the duty of answering the telephone" as required by the regulation.

N.J.A.C. 12:56-5.2(a) states, "All the time the employee is required to be at his or her place of work or on duty shall be counted as hours worked." N.J.A.C. 12:56-5.6 provides:

(a) When employees are not required to remain on the employer's premises and are free to engage in their own pursuits, subject only to the understanding that they leave word at their home or with the employer where they may be reached, the hours shall not be considered hours worked. When an employee does go out on an on-call assignment, only the time actually spent in making the call shall be counted as hours worked.

(b) If calls are so frequent or the "on-call" conditions so restrictive that the employees are not really free to use the intervening periods effectively for their own benefit, they may be considered as "engaged to wait" rather than "waiting to be engaged". In that event, the waiting time shall be counted as hours worked.

[(Emphasis added).]

Therefore, the question as to whether Karanjawala was entitled to overtime for each of the three shifts was whether he was "engaged to be waiting" and therefore entitled to overtime, or "waiting to be engaged," and therefore not entitled to overtime.

In the absence of New Jersey authority interpreting the provisions of the NJWHL at issue, N.J.S.A. 34:11-56a4 and N.J.S.A. 34:11-56a25, the trial court noted the similarity between the applicable regulations in the New Jersey Administrative Code, N.J.A.C. 12:56-5.2 and N.J.A.C. 12:56-5.6, and 29 C.F.R. 553.221(b), (c) and (d), the regulations applicable to the Fair Labor Standards Act (FLSA), 29 U.S.C.A. 201. See Cannon v. Vineland Hous. Auth., 627 F. Supp. 2d 171, 176 n.4 (D.N.J. 2008) (noting similarity in standards applicable to FLSA and NJWHL).

The trial court applied the four-pronged balancing test articulated in Ingram v. County of Bucks, 144 F.3d 265, 268 (3d Cir. 1998) for determining whether an employee's on-call time is compensable under 29 C.F.R. 553.221: (1) whether an employee may carry a beeper or leave home, (2) the frequency of calls and the nature of the employer's demands, (3) the employee's ability to maintain a flexible on-call schedule and switch on-call shifts, and (4) whether the employee actually engaged in personal activities during on-call time. As the Court of Appeals noted, the fourth factor is not based on whether the employee was prevented from engaging in personal activities during on-call shifts, but whether the employee was actually able to do so. Id. at 269.

Applying the Ingram test, the trial court found that Karanjawala was "engaged to be waiting" and entitled to overtime because he could not leave the facility without permission during the two night duty shifts that required him to answer the telephone. Further, the court found that plaintiff did not leave the facility during night duty to engage in personal pursuits except on very infrequent occasions, and never to engage in leisure or recreation activities. As to the third shift, the court found that, as plaintiff acknowledged, he could be anywhere and was not required to be at the facility for phone and security monitor observation. Therefore, the court concluded that plaintiff was "waiting to be engaged" and not entitled to overtime.

An appellate court should not "disturb the factual findings and legal conclusions of the trial judge" unless it is "convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). "Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Ibid. Credibility is always for the factfinder to determine. Ferdinand v. Agric. Ins. Co. of Watertown, N.Y., 22 N.J. 482, 492 (1956). However, we do not accord a "trial court's interpretation of the law and the legal consequences that flow from established facts . . . any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The trial court carefully scrutinized the credibility of the witnesses here, noting their demeanor and the extent to which their testimony was corroborated or inconsistent with other evidence in the case. We are satisfied that the court's detailed factual findings and conclusions regarding Karanjawala's entitlement to overtime for the first and second night duty shifts are amply supported by the evidence.

The arguments raised by AHS in Points II, III and IV and by Karanjawala in his cross-appeal lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the following comments.

In its arguments, AHS challenges the basis for the damages awarded as speculative, the admission of a report as an adoptive admission, and the award of prejudgment interest.

The trial court was not required to limit compensation to the actual time spent in answering calls on the first and second night shifts. N.J.A.C. 12:56-5.7 recognizes that reasonable compensation for an employee who is on call "take[s] into account not only the actual time spent in answering the calls but also some allowance for the restriction on the employee's freedom to engage in personal activities resulting from the duty of answering the telephone." The trial court's determination that Karanjawala should be awarded eight hours compensation per shift was not based upon impermissible speculation but rather, fully supported by N.J.A.C. 12:56-5.3, which provides:

Employees who reside on the employer's premises and whose hours worked are irregular and intermittent to the extent that it is not feasible to account for the hours actually on duty may be compensated for not less than eight hours for each day on duty in lieu of any other applicable provisions.

[(Emphasis added).]

Further, we conclude that the trial court did not abuse its discretion in awarding prejudgment interest. Musto v. Vidas, 333 N.J. Super. 52, 74 (App. Div.), certif. denied, 165 N.J. 607 (2000).

We grant substantial deference to the trial judge's discretion on evidentiary rulings. Bd. of Educ. of Clifton v. Zoning Bd. of Adjustment of Clifton, 409 N.J. Super. 389, 430 (App. Div. 2009). The expert report of Nancy Furstenburg, C.P.A., was supplied by AHS in response to a specific interrogatory that asked AHS to "[s]et forth a specific and complete accounting of the fair value computation" and after the parties agreed that AHS would provide an expert report as to fair value computation and supporting documentation regarding that interrogatory. Therefore, the trial court did not abuse its discretion in concluding that the expert report was admissible an as adoptive admission pursuant to N.J.R.E. 803(b)(2). See Skibinski v. Smith, 206 N.J. Super. 349, 354 (App. Div. 1985).

Karanjawala challenges the attorney fee award as insufficient. This determination rests within the discretion of the trial court and "will be disturbed only on the rarest of occasions and then only because of a clear abuse of discretion." Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001). The trial court is charged with the responsibility to determine the number of hours reasonably expended, which includes a duty to exclude hours that are not reasonably expended and must also "satisfy itself that the assigned hourly rates are fair, realistic, and accurate, or should make appropriate adjustments." Rendine v. Pantzer, 141 N.J. 292, 335-37 (1995). Our review of the record reveals no abuse of discretion by the trial court in discharging this responsibility.

 
Affirmed.

For tax purposes, the sum of $20 was included as both earnings and a deduction on plaintiff's pay stubs as the "fair value" of the lodging provided.

29 C.F.R. 553.221 provides, in pertinent part:

(b) Compensable hours of work generally include all of the time during which an employee is on duty on the employer's premises or at a prescribed workplace, as well as all other time during which the employee is suffered or permitted to work for the employer. . . .

(c) Time spent away from the employer's premises under conditions that are so circumscribed that they restrict the employee from effectively using the time for personal pursuits also constitutes compensable hours of work. . . . The employees in this example cannot use the time for their personal pursuits.

(d) An employee who is not required to remain on the employer's premises but is merely required to leave word at home or with company officials where he or she may be reached is not working while on call. Time spent at home on call may or may not be compensable depending on whether the restrictions placed on the employee preclude using the time for personal pursuits. . . .

(continued)

(continued)

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A-3560-08T2

August 20, 2010