NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4622-07T14622-07T1

IN THE MATTER OF RAYMOUR AND

FLANIGAN FURNITURE, AND

NEIL GOLDBERG, PRESIDENT

AND INDIVIDUALLY

Argued January 6, 2009 - Decided

Before Judges Winkelstein, Gilroy and Chambers.

On appeal from a final decision of the Commissioner of the Department of Labor and Workforce Development, GE-851-0306-ZAY.

Paul DeCamp (Jackson Lewis) of the Virginia, D.C. and California bars, admitted pro hac vice, argued the cause for appellants, Raymour and Flanigan and Neil Goldberg (Jackson Lewis, attorneys; David G. Islinger, Mr. DeCamp and Justin B. Cutlip, on the brief).

Robert M. Strang, Deputy Attorney General, argued the cause for respondent, New Jersey Department of Labor and Workforce Development (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Strang, on the brief).

The opinion of the court was delivered by

WINKELSTEIN, P.J.A.D.

The New Jersey Wage and Hour Law, N.J.S.A. 34:11-56a to -56a38, provides that every employer must pay its employees 1 times the employee's regular hourly wage (the statutory rate) for each hour the employee works in excess of 40 hours in any week. N.J.S.A. 34:11-56a4. The law provides an exemption for, among other employers, "trucking industry employers," which the statute defines as "any business or establishment primarily operating for the purpose of conveying property from one place to another by road or highway, including the storage and warehousing of goods and property." Ibid.

Appellant, Raymour and Flanigan (R & F), is in the retail furniture business. In facilities separate from its retail stores, it operates customer service centers and distribution centers, where it stores and warehouses its goods, and then transports those goods by truck to its customers. R & F asserts that because its trucking operation is a separate "establishment" from its retail facilities, it qualifies as a "trucking industry employer" vis-