Opinion
DOCKET NO. A-3315-14T3
09-12-2016
AMAL MUSALLAM, Plaintiff-Respondent, v. RITESH KALRA, RITESH KALRA, LLC, Defendants-Appellants.
Theodore Sliwinski, attorney for appellants. Amal Musallam, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-463-15. Theodore Sliwinski, attorney for appellants. Amal Musallam, respondent pro se. PER CURIAM
This is a wage collection matter. See N.J.S.A. 34:11-57 to -67. Plaintiff Amal Musallam, a physician's office manager, contended that her employer, Ritesh Kalra, M.D., and Ritesh Kalra, LLC (collectively, Kalra), failed to pay her $12,000 in promised wages earned between September and November 2013. In a February 20, 2015 judgment, the Law Division affirmed the December 30, 2014 decision of the Wage Collection Referee within the Department of Labor and Workforce Development awarding Musallam the requested wages, plus $25 in costs. The referee also imposed an administrative fee of $1200 payable to the State of New Jersey. See N.J.S.A. 34:11-58. On appeal, Kalra challenges the adequacy of the trial court's findings, and contends they lack sufficient support in the record. Based on our review of the record and the arguments presented, we are convinced the matter must be remanded for reconsideration and for the trial court to make more complete findings of fact.
We discern the following facts from the record of the non-jury trial in the Law Division. The sole witnesses were Musallam and Kalra. Musallam testified that she worked as Kalra's office manager at his internal medicine practice in Ridgefield, New Jersey between August 1 and November 29, 2013 — a period of seventeen weeks and two days. She was his sole employee. She asserted that Kalra orally agreed to pay her $25 an hour, or $1000 weekly. Kalra was not in the office five days a week, nor did he see patients for eight hours a day when he was in. However, Musallam testified that she was present and working in the office when Kalra was not.
She testified that Kalra paid her $560 for her first week, based on a $14 hourly wage. She stated that he then paid her $1000 the next week, and a total of $5600 through September 6, 2013 — a period of five weeks and two days. Musallam sought $12,000, consisting of $1000 a week for the twelve weeks between September 6 and November 29, 2013. However, in her written submission to the Division of Wage and Hour Compliance, she included a week by week accounting of Kalra's payments, which totaled $4560 through September 6, 2013. This total was based on the $560 she received the first week ending August 9, and $1000 a week for the next four weeks.
She testified that although Kalra stopped paying her after September 6, she continued to work, based on his assurances that he would pay her. She said that Kalra suddenly moved his office at the end of November, and did not employ her at his new location.
Kalra stated that he agreed to pay Musallam $13 an hour, which he raised to $14 after Musallam's first week. He also contended that he hired Musallam to work part-time, for an average of twenty hours a week. He asserted that the hours she worked coincided with the hours he was present in the office treating patients. He claimed he paid her a total of $3034 through November 22, 2013. He conceded he owed her for work thereafter, but was uncertain about the amount due, stating, "I don't know. Maybe three — $300, $225, somewhere there. Maybe — no — no more than $300, $400."
In support of his contentions, he presented a document he prepared for the hearing, based on other records of the hours when he saw patients. Relying on this document, Kalra claimed he made the following payments to Musallam:
| Date Paid | Hours Worked | Amount Paid |
| August 12, 2013 | 32 | $420 |
| August 29, 2013 | $490 | |
| September 20, 2013 | 36 | $504 |
| October 11, 2013 | 35 | $490 |
| October 30, 2013 | 29 | $400 |
| November 22, 2013 | 52 | $730 |
Kalra noted that the amount paid was equivalent to thirty-five hours at $14 an hour.
Kalra also introduced into evidence print-outs of text-message conversations between him and Musallam after she left. In one message, which he attributed to Musallam, she appeared to acknowledge receiving payment of $728 for a three-week period, although she does not identify when. Kalra testified that he paid Musallam $728 for the three-week period ending November 22, 2013, although his document indicated payment of $730.
The text read:
I'm not a piece of shit u pay me $728 for three weeks and u make a deal and u have no respect I'm [n]ot letting u disrespect [me] ever again u are not better not me and u [are] not better than anyone I'm not taking [yo]ur shit.In his response, Kalra denied disrespecting Musallam.
Neither party presented contemporaneous records of the hours Musallam worked, or the wages she received. They agreed that all wages were paid in cash and no paystubs were created. Musallam contended that she regularly recorded her payments in a notebook, but she alleged Kalra tore out the pages. She testified she told Kalra she wanted to be paid by check, with paystubs documenting her pay, but Kalra insisted on paying her in cash. After she ceased working for him, she sent texts to him asking for tax forms. She stated that over ninety percent of Kalra's patients were uninsured and paid him in cash.
In contrast, Kalra claimed that Musallam asked to be paid in cash, and he accommodated her. He also contended that after he relocated and she ceased working for him, he requested she complete a W-9 tax form to enable his accountant to prepare a 1099 form for her, but she did not comply.
He did not directly deny that most of his patients paid cash, stating, "Several were cash and then severals [sic] were insured."
On March 31, 2014, plaintiff filed a wage claim with the Department of Labor and Workforce Department alleging unpaid wages. After a hearing, Wage Collection Referee Toni M. Foskey found for the plaintiff in the amount of $12,000. She noted that defendant's log sheet "completely conflicts with the testimony of both parties." Relying on Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S. Ct. 1187, 90 L. Ed. 1515 (1946), the referee stated that when an employer fails to maintain records as required by law, the burden of proof in a wage claim case shifts to the employer. Applying that burden-shifting analysis, the referee ruled in Musallam's favor.
The record before us does not include a transcript of the administrative hearing.
On de novo appeal, the Law Division affirmed the referee's judgment. After reviewing the nature of the dispute, the trial judge concluded, based on his assessment of the parties' demeanor, that Musallam was candid and believable, and Kalra's testimony "made no sense." The judge noted that Kalra did not issue a 1099 and did not keep any books or records whatsoever, as he was required by law to do.
The books and records that he submitted to me show that he was running, basically, a cash medical practice and he showed that that's the way he was doing business. So, it is plain and simple that he was going to hire [Musallam] . . . off the books. And that then became his problem because, frankly, it appears that he was going to pay her $25 an hour. I believed her testimony that she's owed 12 weeks. . . . He was
running a cash business and then he cheated his office manager out of the pay and strung her along.
The court affirmed the referee's judgment of $12,000 for unpaid wages. This appeal followed.
The Law Division reviews de novo the judgment of the Wage Collection referee. See Marr v. ABM Carpet Service, Inc., 286 N.J. Super. 500, 504 (Law Div. 1995); see also N.J.S.A. 34:11-65 (stating that "[u]pon the trial of any appeal either party may produce any witness not produced or sworn in the court below, or any documentary evidence not offered or admitted in the court below"). However, upon appellate review, our task is confined to determining whether sufficient credible evidence in the record supports the Law Division's decisions. Cf. State v. Johnson, 42 N.J. 146, 162 (1964) (discussing appellate court's standard of review of de novo trial on the record pursuant to Rule 3:23-8).
Although the statute appears to contemplate that the Law Division shall utilize, but may supplement, the record of the agency, the trial in this case proceeded entirely anew. Neither party challenges this procedure.
We do not independently assess the evidence. See State v. Locurto, 157 N.J. 463, 471 (1999). We will not disturb the court's findings in a non-jury trial "unless we are 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[.]" Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (internal quotation marks and citation omitted). Moreover, as under the "two-court rule" applicable to review of municipal appeals, the trial court's de novo findings of fact in a wage collection matter are entitled to greater deference when they coincide with those of the original agency fact-finder. See Locurto, supra, 157 N.J. at 474 (stating "two-court rule" related to municipal appeals).
However, to enable us to exercise our review, the trial court in a non-jury civil action must set forth its findings of fact and conclusions of law. Curtis v. Finneran, 83 N.J. 563, 569-70 (1980); Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990); R. 1:7-4. Furthermore, we owe no deference to the Law Division's legal determinations. See State v. Handy, 206 N.J. 39, 45 (2011).
The judge was confronted with three fact issues: what were the terms of the parties' oral employment agreement, what did Musallam earn, and what did Kalra pay. As to each issue, the court credited Musallam's version of events.
Musallam was not obliged to memorialize her employment agreement in writing in order to enforce it. See Troy v. Rutgers, 168 N.J. 354, 365 (2001) (stating that oral promises may give rise to an enforceable obligation of employer); Shiddell v. Electro Rust-Proofing Corp., 34 N.J. Super. 278, 290 (App. Div. 1954), certif. denied, 17 N.J. 408 (1955). On the other hand, Kalra was required by the wage statutes to "keep a true and accurate record of the hours worked . . . and the wages paid" to each employee. N.J.S.A. 34:11-56a20. This Kalra failed to do. Kalra's informal record of patient visits is not a record of hours Musallam worked, let alone a record of the wages he paid to her.
The judge weighed the absence of the required records. However, unlike the wage referee, he did not engage in a burden shifting analysis suggested by Anderson, supra, 328 U.S. at 687-88, 66 S. Ct. at 1192, 90 L. Ed. at 1523. In Anderson, the Supreme Court held that where an employee lacks documentary proof of work performed for which he seeks payment, but presents sufficient evidence to show "the amount and extent of that work as a matter of just and reasonable inference[,]" then the burden shifts to the employer to present evidence of the precise work performed. Ibid. If the employer lacks wage records required by law to be kept, then the court may award the employee damages although they are only approximate. Ibid. Since the court did not rely on Anderson, we need not address Kalra's reference to subsequent federal authority interpreting these burden-shifting principles.
Nonetheless, we are constrained to remand this matter to the trial court so it may address what we view as significant inconsistencies in Musallam's testimony, which may impact the court's credibility determination and its ultimate award of $12,000. She submitted a writing to the Division of Wage and Hour Compliance stating she received $4560. However, Musallam testified in the Law Division trial that she received $5600 from Kalra. If the $5600 amount is correct — for six weeks of work — then Musallam was entitled to $11,000 for the remaining eleven weeks. However, if the $4560 amount is correct, then Musallam was entitled to the $12,000 amount awarded. Furthermore, if the text message Kalra introduced is credited, Musallam also received $728 for an unspecified three-week period that is not reflected in her written submission to the Division, or in her testimony before the court.
Arguably, Musallam was entitled to $440 or $400 for the shortfall for the first week, in addition to the $11,000 or $12,000. However, she did not apparently seek payment of that in the Division or in the appeal to the court. She also did not seek payment for August 1 and 2, a Thursday and Friday, which preceded her first full week of work. --------
Although we defer to the trial court's credibility determinations, we are uncertain — in the absence of more specific findings of fact — whether the court considered these inconsistencies in concluding that Musallam was credible and that she was owed $12,000. We do not mean to imply that these inconsistencies should alter the court's ultimate conclusion. However, it is incumbent upon the court to address them.
On the other hand, we reject Kalra's argument that the trial court failed to address Kalra's records in sufficient detail. Kalra's table describing the hours Musallam allegedly worked and the payments he allegedly made was an unreliable, hearsay document. It was not a business record, as it was not prepared contemporaneously, or in the "regular course of business"; rather, it was prepared from other documents for litigation purposes. See N.J.R.E. 803(c)(6). Although the court admitted the document into evidence, the court was not obliged to deem it trustworthy.
To the extent not addressed, Kalra's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Remanded for reconsideration and for more complete findings of fact and conclusions of law. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION