The New Jersey Employment Law Firm Blog
A recent decision by the New Jersey Appellate Division serves as a stark reminder of the strict compliance standards employers face when navigating the New Jersey Earned Sick Leave Law (ESLL). In Cano v. County Concrete Corporation, the court clarified the narrow construction industry exemption, the requirements for existing PTO policies to count as ESL, the consequences of poor recordkeeping and notice, and the rights of similarly situated employees.
The plaintiffs, William Cano and Raymond Bonelli, were hourly drivers who performed services for County Concrete Corporation, a supplier of sand, gravel, and redi-mix concrete. Following the expiration of their collective bargaining agreements, the plaintiffs alleged that the company failed to provide paid sick leave, failed to maintain proper records, and neglected to post required statutory notices. Generally, the court evaluated four critical aspects of ESLL enforcement:
1. The “Construction Industry” Exemption
Under the ESLL, employees performing services in the construction industry under a collective bargaining agreement are exempt from the law’s requirements. County Concrete argued that its employees fell under this exemption. The court, however, looked to the plain language of the statute and North American Industry Classification System (NAICS) codes to determine the reality of the business. Because the company supplied materials like redi-mix concrete but did not engage in the business of constructing houses, schools, or other structures, the court firmly classified the employer as a “material supplier” and manufacturer, meaning the construction exemption did not apply.
2. Compliance of Existing PTO Policies
In New Jersey, employers can technically use their existing paid time off (PTO) or vacation policies to satisfy ESLL obligations—but only if those policies meet all of the statute’s strict accrual and usage requirements. County Concrete argued its “vacation” policy was a compliant PTO policy. The court disagreed, heavily weighing several restrictive factors in the employer’s policy:
- Limited Categories of Leave: The employer’s policy only permitted paid leave for vacation, bereavement, and holidays. It failed to provide leave for ESLL-mandated reasons, such as caring for a sick family member, addressing domestic violence circumstances, or attending a child’s school-related event.
- Doctor’s Notes: The company unlawfully required a doctor’s note for illness-related absences of less than three days.
- Management Discretion: Employee requests for leave were subject to the sole discretion of management, and vacation requests required a minimum of one week’s advance notice. Because the policy was far more restrictive than the ESLL allows, the court found it was not a valid substitute for statutory earned sick leave.
3. The High Cost of Poor Recordkeeping and Inadequate Notices
The ESLL imposes strict notice and recordkeeping obligations on employers, and the Cano decision highlights the severe consequences of ignoring them. Employers are required to post statutory notices of ESLL rights conspicuously and provide individualized written notices to employees in English and other languages, such as Spanish. County Concrete failed on all fronts; the evidence showed the company only posted a notice in an obscure, inaccessible location at just one of its three worksites, and completely failed to provide the required individualized written notices in English or Spanish.
Furthermore, the employer failed to maintain proper records documenting the hours its employees worked and the sick leave they used. Under the ESLL, if an employer fails to retain adequate records, the law creates a presumption that the employer failed to provide the required earned sick leave. To overcome this, the employer must rebut the presumption with “clear and convincing evidence,” which County Concrete failed to do.
4. Standing for “Similarly Situated” Employees
Perhaps most significantly for employment litigation, the employer argued that the unnamed plaintiffs (103 other employees) lacked standing to recover damages because the plaintiffs never formally certified a class action prior to trial. The Appellate Division rejected this argument, noting that the ESLL’s statutory language specifically permits an employee to maintain an action “for and on behalf of himself or other employees similarly situated.” The court determined that the legislature did not intend to require formal class certification procedures for ESLL claims, allowing the unnamed employees to recover damages without being certified as a class.
Accordingly, the court upheld the judgments against County Concrete, affirming the award of damages—including 200 percent in liquidated damages—to the named plaintiffs and the 103 similarly situated employees.
In wage and hour or sick leave cases, an employer’s policies may not be as compliant as they claim. Courts look at the realities of the policy’s restrictions and the specific statutory definitions, not just the labels an employer uses. If you have been denied your rightful earned sick leave or have faced retaliation for requesting protected time off, you need a professional evaluation. Contact the Resnick Law Group today at (973) 781-1204 to provide your preliminary information and schedule a consultation with one of our experienced employment attorneys.