"Due process is not a fixed concept . . . but a flexible one that depends on the particular circumstances. . . . Fundamentally, due process requires an opportunity to be heard at a meaningful time and in a meaningful manner."
How later courts described this case
- "Due process is not a fixed concept . . . but a flexible one that depends on the particular circumstances. . . . Fundamentally, due process requires an opportunity to be heard at a meaningful time and in a meaningful manner."
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0056-24
WILLIAM CANO and
RAYMOND BONELLI,
on their own behalf and
on behalf of all similarly APPROVED FOR PUBLICATION
situated employees, January 28, 2026
APPELLATE DIVISION
Plaintiffs-Respondents,
v.
COUNTY CONCRETE
CORPORATION,
Defendant-Appellant.
Argued October 20, 2025 – Decided January 28, 2026
Before Judges Sabatino, Walcott-Henderson and
Bergman.
On appeal from the Superior Court of New Jersey,
Law Division, Morris County, Docket No. L-1365-19.
Katharine W. Fogarty argued the cause for appellant
(Kaufman Dolowich, LLP, attorneys; Katherine W.
Fogarty and Eileen M. Ficaro, on the briefs).
Raymond M. Baldino argued the cause for
respondents (Zazzali, PC, attorneys; Raymond M.
Baldino, of counsel and on the brief).
The opinion of the court was delivered by
BERGMAN, J.A.D.
In this case of first impression, we address whether the New Jersey
Earned Sick Leave Law ("ESLL"), N.J.S.A. 34:11D-1 to -13, requires
defendant County Concrete Corporation to provide paid sick leave to its
employees, plaintiffs William Cano and Raymond Bonelli ("named plaintiffs")
on behalf of themselves and other similarly situated employees ("unnamed
plaintiffs").1 We further examine the qualifications in order for employers to
utilize the "construction industry" exemption at N.J.S.A. 34:11D-1 as well as
the procedural and legal standards required to assert ESLL claims and obtain
damages for similarly situated employees pursuant to N.J.S.A. 34:11D-5 and
N.J.S.A. 34:11-56a.
Defendant appeals from a Law Division order granting plaintiffs partial
summary judgment determining defendant's leave policies were non-compliant
with the employee notice requirements of the ESLL. Defendant also appeals
from the trial court's final judgment after a bench trial determining defendant
was not entitled to the "construction industry" exemption, its paid leave policy
was non-compliant with several sections of the ESLL, and the post-trial
damages award to the unnamed plaintiffs comprising of 103 similarly situated
employees. Having considered the parties' arguments, the extensive factual
1
We collectively refer to the named and unnamed plaintiffs as "plaintiffs."
A-0056-24
2
record, and applicable legal principles, we affirm. Further we refer proposed
pre-trial procedures concerning ESLL claims to the Civil Practice Committee
for consideration.
I.
The ESLL was enacted as L. 2018, c. 10 and took effect October 29,
2018.2 It provided expansive paid sick leave rights to employees statewide. In
his press release concerning the ESLL, Governor Murphy declared:
There is no reason anyone should have to choose
between economic security and their health. After
today, New Jerseyans will no longer have to face such
a choice. I am proud to sign into law one of the
strongest earned leave protections in the country for
every hardworking employee who deserves the basic
right of a paid sick day.
[Press Release, Off. of the Governor, Press Release
for A1827 (May 2, 2018) (on file with N.J. State
Archives).]
2
Assembly Bill A3451, was passed by both houses of the Legislature on
January 12, 2026, and was signed by the Governor on January 17, 2026. The
amendment expanded the New Jersey Family Leave Act ("NJFLA"), N.J.S.A.
34:11B-1 to -16, by reducing the numerical employee threshold for job
protection. The changes also provided employees eligible for leave under the
ESLL, NJFLA and temporary disability benefits the right to choose the order
in which these types of leave are taken. S. 2950/A. 3451 (2026). The
amendment takes effect six months after its enactment. The amendment does
not affect the issues raised in this appeal.
A-0056-24
3
He noted New Jersey joined "a select group of states—nine plus the
District of Columbia—that have enacted paid sick leave." The Governor
added:
The bill further permits employers to create more
generous policies that provide additional leave time.
Employees may use paid sick leave for: [d]iagnosis,
treatment, or recovery from a mental or physical
illness or injury, or preventive care, for the employee
or a family member[;] [o]btaining services if the
employee or a family member is a victim of domestic
or sexual violence[;] [c]ircumstances arising from a
public health emergency[; or] a school-related meeting
or event with regard to the employee's child.
[Ibid.]
Defendant's Business and Leave Policies
Defendant operates as a supplier of sand, gravel, and redi-mix concrete,
with five worksites in Kenvil, East Orange, Oxford, and two locations in
Morristown. The named plaintiffs were employed as hourly drivers at the
Kenvil worksite and also served as union shop stewards for International
Brotherhood of Teamsters, Local 863.
Prior to their varied expiration dates, defendant's employees worked
under five different collective bargaining agreements ("CBAs") covering
separate groups of workers at the company's various worksites. For employees
under the Kenvil Sand and Gravel CBA and Morristown and Kenvil redi -mix
CBA—the majority of the workers represented in this action—the expiration
A-0056-24
4
of the CBA occurred on January 15, 2019. For employees under the Oxford
and Sussex CBAs, as well as the Landi CBA, the expiration occurred on
January 15, 2020. For employees covered under the East Orange and
Flemington CBAs, the expiration occurred on January 15, 2021. The named
plaintiffs specifically worked under the Kenvil redi-mix CBA. All the CBAs
provided for three days bereavement leave, six paid holidays, and vacation
time to be calculated through specific provisions in the CBA.
Under defendant's policies, employees were required to request vacation
time before April 16 of each year, which was subject to approval at defendant's
discretion, available and scheduled in accordance with seniority, and subject to
defendant's rescheduling. After April 16, any request for vacation required a
minimum of one week's advance notice subject to rescheduling by defendant
based on business needs. Vacation pay was available as zero days for
employees with less than one year's tenure, five days for those with one to
three years tenure, ten days for those with more than three years, and fifteen
days for a certain group of employees who have been grandfathered.
This Litigation
Approximately five months after the CBA governing their leave time
lapsed on January 15, 2019, plaintiffs filed a complaint against defendant,
seeking damages and attorneys' fees related to alleged violations by defendant
A-0056-24
5
in providing paid sick leave as required by the ESLL. Plaintiffs' complaint
also included "other similarly situated employees" as plaintiffs.
Defendant filed its answer, raising an exemption from the requirements
of the ESLL because its employees were in the "construction industry" and
"were under contract pursuant to and under a [CBA]" pursuant to N.J.S.A.
34:11D-1. Defendant asserted other affirmative defenses including its
"vacation" leave policy was compliant with the ESLL as it qualified as paid
time off ("PTO") under N.J.S.A. 34:11D-2(b).
During the discovery process, plaintiffs sought production of payroll
records, policy documents, and communications regarding leave across all
worksites, ultimately obtaining more than 27,000 pages of plaintiffs' payroll
records in discovery.
Partial Summary Judgment
After the conclusion of discovery, plaintiffs moved for summary
judgment, contending defendant's leave policies were not compliant with the
ESLL because defendant failed to provide statutory notice of ESLL rights to
its employees as required by N.J.S.A. 34:11D-7 and its "vacation" leave policy
was not PTO nor compliant with the ESLL's calculation methodology for
accruing sick leave under N.J.S.A. 34:11D-2(b). Defendant cross-moved for
summary judgment, arguing it was exempt because its employees were "not
A-0056-24
6
under the statute" because its employees were in the "construction industry,"
were under CBAs and its leave policies were compliant with the ESLL.
Defendants alternatively argued that genuine factual disputes existed,
precluding the grant of summary judgment to plaintiffs.
In a written decision, the motion court granted partial summary
judgment to plaintiffs on liability only, finding defendant violated the ESLL in
one respect, by failing to post the statutory written notice as required by
N.J.S.A. 34:11D-7. The motion court rejected plaintiffs' other grounds,
finding genuine factual issues existed concerning whether defendant
"maint[ained] [] unlawful policies" or that it "fail[ed] to maintain records of
ESLL leave" for its employees. The motion court further denied defendant's
cross-motion. Defendant's subsequent motion for reconsideration was denied,
and we denied defendant's application for leave to appeal. Cano v. County
Concrete Corp., No. M-5191-21 (App. Div. June 23, 2022).
Trial and Judgment
Pre-trial, defendant moved in limine to preclude evidence or argument
related to the similarly situated employees, or an award of damages to any
outside named plaintiffs. The trial court denied the motion, relying on the
language in N.J.S.A. 34:11-56a25, which permits an employee "to maintain the
A-0056-24
7
action . . . on behalf of himself or other employees similarly situated" and
based on economy of litigation.
Subsequently, a three-day bench trial was held in September 2022. At
trial, the named plaintiffs presented evidence and witness testimony they were
denied paid leave required by the ESLL and contended defendant's PTO policy
was not compliant with the statute in several respects.
After trial concluded, the court determined in a written decision that
"defendant has not complied with the ESLL" by virtue of its failure: (1) to
provide ESLL required notices pursuant to N.J.S.A. 34:11D-7 (concurring with
the prior partial summary judgment order); (2) to maintain records pursuant to
N.J.S.A. 34:11D-6; and (3) to provide plaintiffs ESLL benefits pursuant to
N.J.S.A. 34:11D-2 and -3. The court entered judgment of $9,120 in favor of
plaintiff Bonelli and $8,880 in favor of plaintiff Cano. The trial court
calculated these individual awards by applying named plaintiffs hourly rate
multiplied by forty hours for the paid time each was entitled for the years they
were employed by defendant after the statute took effect and their respective
CBAs expired, plus an additional 200 percent in liquidated damages as
required by N.J.S.A. 34:11-56a25. The judgment also established further
procedures for post-trial exchanges of information to determine the identity of
the unnamed similarly situated plaintiffs, whether those plaintiffs consented to
A-0056-24
8
representation by the named plaintiffs' attorneys, and the amount of damages
claimed by these unnamed plaintiffs based on the damage calculation formula
previously determined by the court for the named plaintiffs.
Based on these requirements, plaintiffs obtained certifications from 133
previously unnamed plaintiffs/employees, designating the named plaintiffs'
counsel as their representatives. Following objections and outside
negotiations, the parties entered a "Stipulation and Consent Judgment" which
entered judgment against defendant in the amount of $758,898.38 as damages
for the previously unnamed/similarly situated plaintiffs/employees based on
the same formula utilized by the trial court for the named plaintiffs. The
stipulation reserved defendant's right "to fully appeal any and all issues . . . in
any way, including the award of damages to any similarly situated employee ,
and that nothing contained in this Stipulation and Consent Judgment
constitutes and admission of liability or other wrongdoing by [d]efendant. "
Following plaintiffs' motion for counsel fees, the court entered a final
judgment in favor of all plaintiffs for $1,368,322.29. The judgment was
comprised of the $758,898.38 in damages for the unnamed plaintiffs pursuant
to the stipulation, $9,120 for plaintiff Bonelli, $8,880 for plaintiff Cano, and
attorneys' fees to plaintiffs' counsel of $591,423.91 as permitted by the ESLL.
The court set forth its reasoning in a written decision on that same date.
A-0056-24
9
This Appeal
On appeal, defendant challenges both the order for partial summary
judgment and the final judgment entered after trial, contending the motion and
trial courts erred by determining: (1) defendant did not qualify for the ESLL's
"construction industry" exemption; (2) defendant's leave policy, record
keeping policy, and notice to employees violated the ESLL; (3) unnamed
plaintiffs had standing to pursue collective claims at trial without class
certification; (4) unnamed plaintiffs were permitted to introduce evidence of
alleged damages at trial without proper foundation; and (5) unnamed plaintiffs
were permitted to opt-in and present damages on a post-judgment basis.
II.
After a bench trial, our "review of a trial court's fact-finding function is
limited." Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011)
(quoting Cesare v. Cesare, 154 N.J. 394, 411 (1998)). The factual findings and
legal conclusions of the trial court are not disturbed unless the reviewing court
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. Inv'rs Ins. Co. of Am., 65 N.J.
474, 484 (1974). We owe no deference, however, to a trial court's
interpretation of the law and the legal consequences that flow from established
A-0056-24
10
facts. Gallenthin Realty Dev., Inc. v. Borough of Paulsboro, 191 N.J. 344, 358
(2007).
Our review regarding the applicability, validity or interpretation of a
statute is de novo. In re Ridgefield Park Bd. of Educ., 244 N.J. 1, 17 (2020).
When construing a statute, our "paramount goal" is to discern the Legislature's
intent. DiProspero v. Penn, 183 N.J. 477, 492 (2005). We must "look first to
the statute's actual language and ascribe to its words their ordinary meaning."
Kean Fed'n of Teachers v. Morell, 233 N.J. 566, 583 (2018). "'[T]he best
indicator of [the Legislature's] intent is the statutory language,' thus it is the
first place we look." Richardson v. Bd. of Trs., 192 N.J. 189, 195 (2007) (first
alteration in original) (quoting DiProspero, 183 N.J. at 492). "If the plain
language leads to a clear and unambiguous result, then our interpretive process
is over." Ibid.
A.
We first address defendant's contention the court erred by holding
defendant did not qualify for the "construction industry" exemption.
Under the ESLL:
"Employer" means any person, firm, business,
educational institution, nonprofit agency, corporation,
limited liability company or other entity that employs
employees in the State. . . . "Employer" does not
include a public employer that is required to provide
A-0056-24
11
its employees with sick leave with full pay pursuant to
any other law, rule or regulation of this State.
[N.J.S.A. 34:11D-1.]
Employers are exempt from the requirements of the ESLL if its
employees are "performing service in the construction industry that is under
contract pursuant to a collective bargaining agreement. . . . " Ibid.3
The court found the statutory exemption for the construction industry in
the ESLL was not specifically defined by the statute. Applying a plain
meaning reading to the statute, the court determined defendant was a "material
supplier," because it supplies sand, gravel, redi-mix concrete, and related
products to builders, developers, and homeowners and "[could be] a
manufacturer in the manufacturing industry." The court further determined
defendant does not engage in the business of constructing houses, schools, or
other structures. As a result, the court concluded the exemption did not apply
to defendant based on the nature of its operations as a manufacturer/supplier
rather than as a builder. We agree.
3
Defendant argued in its merits brief that legislative action was pending
concerning this portion of the statute but, to date, no legislation has been
enacted which modifies any section of the ESLL.
A-0056-24
12
The plain meaning and rational reading of the statute supports the court's
finding. We further point to the North American Industry Classification
System ("NAICS").4 Under this classification system, there are twenty sectors
which are represented by the first two digits of the NAICS code. Ibid.
"Construction" is one such sector and utilizes "23" as its sector code; including
the code "236000" which is a broad category for building construction. Ibid.
"Manufacturing" is another sector code represented by the first two digits "32."
Ibid. Redi-mix concrete for companies making and delivering concrete in a
plastic state and using purchased or mined sand/gravel, such as defendant, are
under the NAICS manufacturing sector and are specifically categorized under
code "327320." Ibid. Based on this information, we conclude the defendant's
NAICS classification is in manufacturing, not construction, and that the trial
court did not err by finding defendant is not in the construction industry and is
not entitled to an exemption from the ESLL under N.J.S.A. 34:11D-1. The
4
NAICS is the standard used by federal statistical agencies to classify
business establishments for the purpose of collecting, analyzing, and
publishing statistical data related to the U.S. business economy. NAICS is
based on a production-oriented concept, meaning that it groups establishments
into industries according to similarity in the processes used to produce goods
and services. www.census.gov/programs-surveys/ecomonic-
census/year/2022/guidance/understanding-naics.html last visited January 20,
2026.
A-0056-24
13
trial court's determination was based on a plain meaning reading of the statute
as well as substantial, credible evidence in the record.
B.
We next turn to defendant's contention that the trial court erred by
finding its leave policy, notice to employees and recordkeeping was not
compliant with the ESLL. Specifically, defendant asserts its leave policy did
not violate the ESLL because it's "vacation" policy was a compliant PTO
policy under the ESLL at N.J.S.A. 34:11D-2(b) and as such alleviates it from
the record keeping requirement in the statute. Defendant argues it
demonstrated at trial that the policy and past practice of the company permitted
employees to use vacation time for "anything they want," including but not
limited to the leave categories required by the ESLL. Defendant further
asserts its employees are provided with paid sick days and are not disciplined
for taking a sick day. It contends its leave policies permit employees to take
paid days off for family illness, or to attend an event at their child 's school.
We reject those contentions.
In relevant part, the ESLL states:
(a) Each employer shall provide earned sick leave to
each employee working for the employer in the State.
For every 30 hours worked, the employee shall accrue
one hour of earned sick leave[.] The employer shall
not be required to permit the employee to accrue or
A-0056-24
14
use in any benefit year . . . more than 40 hours of
earned sick leave. . . .
(b) An employer shall be in compliance with this
section if the employer offers [PTO], which is fully
paid and shall include, but is not limited to, personal
days, vacation days, and sick days, and may be used
for the purposes of section 3 (C.34:11D-3) of this act
in the manner provided by this act, and is accrued at a
rate equal to or greater than the rate described in this
section.
[N.J.S.A. 34:11D-2.]
Under the ESLL, leave may be used for personal illness or injury, care
of family members, domestic/sexual violence, public health emergency, or
school-related activities. N.J.S.A. 34:11D-3(a). Employers can also be
deemed compliant with the ESLL by offering PTO, such as vacation or
personal days, if such leave is usable for ESLL purposes and accrues at or
above the statutory rate. N.J.S.A. 34:11D-2(b).
Employers are also required to post and provide individualized notice of
ESLL rights to their employees, in English and other languages, N.J.S.A.
34:11D-7, and to retain records of employee hours worked and sick leave
taken for five years. N.J.S.A. 34:11D-6. Failure to comply with the record
retention requirement creates a presumption of a violation of the ESLL "absent
clear and convincing evidence otherwise." Ibid.
A-0056-24
15
After our review of the record, we determine, as did the trial court, that
defendant's "vacation policy" did not qualify as an allowable PTO leave policy
because it did not provide paid leave for all purposes required by the ESLL.
Instead, paid leave was restricted to limited categories of vacation,
bereavement, and holidays which were non-compliant with the categories of
paid leave required by the ESLL at N.J.S.A. 34:11D-3(a). Despite arguments
by defendant to the contrary, the evidence at trial showed its leave policy did
not provide paid leave to aid family members "during diagnosis, care, or
treatment of, or recovery from, the family member's [illness, injury, or other
health condition,]" id. at (a)(2); for circumstances resulting from the
employee's or family member's being a "victim of domestic or sexual
violence," id. at (a)(3); or for "time needed by the employee in connection with
a child of the employee to attend a school-related conference, meeting,
function or other event requested or required by a school administrator,
teacher, or other professional staff member responsible for the child 's
education." Id. at (a)(5). In addition, defendant's restrictive leave policy
required a doctor's note for any illness-related absence, even for absences less
than three days, which was not compliant with N.J.S.A. 34:11D-3(b).
We further determine sufficient evidence in the trial record supports the
court's finding that employee requests for leave for ESLL-protected reasons
A-0056-24
16
were sometimes denied and were at the sole discretion of management. We
further conclude that defendant lacked a written policy covering the law's
breadth, wrongly attempted to count existing vacation as satisfying ESLL
obligations, and maintained accrual policy and use rules more restrictive than
ESLL accrual requirements under N.J.S.A. 34:11D-2(a).
We conclude the trial court correctly found defendant's vacation/PTO
policy5 did not allow accrual and use consistent with ESLL requirements
because employees were unable to use sick time unless or until they met
certain vacation eligibility thresholds which were more restrictive than the
accrual requirements of the ESSL. It is undisputed, for example, an employee
who worked less than fifty days is not entitled to any paid sick leave under
defendant's policy, wherein the ESLL requires one hour of paid sick leave for
every thirty hours worked.
Further, the record demonstrates that defendant stopped its payroll
system from calculating accrued ESLL leave for its employees, even after their
CBAs expired and the ESLL took effect. The record supports the court's
5
We reiterate defendant's policy on vacation time accrual, which it claimed
was a compliant PTO policy under N.J.S.A. 34:11D-2(b), was zero days for
employees with less than one year's tenure, five days for those with one to
three years tenure, ten days for those with more than three years, and fifteen
days for a certain group of employees who have been grandfathered.
A-0056-24
17
sound determination that both named plaintiffs were denied pay for days
missed for doctor's appointments, despite having "vacation" PTO available.
This plainly violates the requirements of N.J.S.A. 34:11D-3, which permits
paid ESLL sick leave for several reasons, including doctor's appointments. In
sum, substantial evidence presented at trial supports the trial court's conclusion
that defendant's vacation policy was not a qualified PTO policy under N.J.S.A.
34:11D-2(b) and was, therefore, not erroneous.
We also concur with the trial court that defendant violated the notice and
recordkeeping requirements of the ESLL. Both the summary judgment judge
and the trial judge determined there was no adequate, conspicuous posting of
ESLL rights as required by section N.J.S.A. 34:11D-6 and the only evidence of
posting was at the Kenvil worksite. The trial court judge found that the notices
allegedly posted were in an obscure location, not accessible to all employees,
and no other locations posted the required notice.
Our de novo review of the summary judgment record clearly
demonstrates no genuine issue of material fact existed as to whether defendant
failed to post notices as required by the ESLL. See Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 540 (1995). After a full trial, the court also
determined there was ineffective posting of the required notices, essentially
concurring with the summary judgment court. In addition, the trial court found
A-0056-24
18
no individualized or written notices were provided to employees of their ESLL
rights, either in English or in Spanish as required. There is ample evidence to
justify the trial court's findings that defendant failed to provide the required
notice as there was substantial, credible evidence in the record to support
defendant failed to adequately notify its employees under the ESLL at
N.J.S.A. 34:11D-7. This non-compliance alone was violative of the ESLL.
The court further found defendant failed to maintain proper records as to
its employees' available leave and leave used for ESLL-covered purposes as
required by N.J.S.A. 34:11D-6. The record supports the trial court's
determination that defendant's records lacked the required information.
Defendant's payroll company reports did not document the hours worked by
employees and the sick leave earned and used by their employees. Pay
records, including paystubs, time detail reports, and summary reports did not
reveal the employees use of ESLL sick leave. The court reasonably found that
defendant failed to rebut by clear and convincing evidence it had not
maintained or retained adequate records documenting hours worked by the
employees and earned sick leave taken by the employees. In that scenario, the
ESLL presumes an employer has failed to provide the earned sick leave
required. See N.J.S.A. 34:11D-6. Again, substantial evidence in the record
A-0056-24
19
supports this determination and we glean no error arising from the trial court's
findings.
C.
We now address defendant's contentions the trial court erred by (1)
finding the unnamed plaintiffs had standing to pursue collective claims at trial
without class certification; (2) permitting the unnamed plaintiffs to introduce
evidence of alleged damages at trial without proper foundation, and (3)
permitting the unnamed plaintiffs to opt in and present damages on a post-
judgment basis.
Defendant asserts the unnamed plaintiffs had not certified a class or
designated a class representative prior to the entry of the court's post-trial
order. Therefore, defendants contend the unnamed plaintiffs had no standing
to assert any claims at trial or thereafter.
Defendant further asserts the trial court erred by admitting evidence
concerning the unnamed plaintiffs alleged damages without proper foundation
and permitting plaintiffs to engage in post-trial discovery. Defendant asserts
these procedural flaws precluded it from confirming the true value of any
potential damages for unnamed plaintiffs and from discerning the damages
each class member was entitled to under the requirements of the ESLL
resulting in a potential windfall to the alleged similarly situated employees .
A-0056-24
20
Defendant also contends the court's determination resulted in prejudicial
error as it effectively prohibited defendant from engaging in class discovery
concerning whether the unnamed plaintiffs were entitled to pursue ESLL
claims and to dispute the damages requested by unnamed plaintiffs. Defendant
also argues class certification was required under Rule 4:32-2, or in the
alternative, collective action certification was required under analogous
principles of federal law 6 and the court's failure to require pre-trial certification
was error.
1.
We first address defendant's contention the trial court erred by finding
the unnamed plaintiffs had standing to pursue collective claims at trial without
class certification. We note the court's determination permitting the inclusion
of the unnamed plaintiffs first arose in its decision denying defendant's motion
in limine to preclude "any and all evidence, testimony, argument or reference
to the alleged class, any allegedly similarly situated employee, or alleged
damages outside of plaintiffs Bonelli and Cano."
The court found:
6
Plaintiffs also alternatively asserted collective action arguments but
principally asserted that neither class nor collective action certification
procedures were required.
A-0056-24
21
[M]y ruling is twofold. Most importantly, the
statutory provisions [N.J.S.A. 34:11-D7 and N.J.S.A.
34:11-56a25] allow for a collective action to be
brought, . . . and[] lacking a framework in the statute
as to how that is to be done, . . . we[] will have to . . .
figure it out on this . . . Lewis-and-Clark-like
adventure into constructing an appropriate framework
to do that, assuming the evidence is present and
presented during the course of trial, or perhaps there
may be supplemental proceedings that may be
involved once this trial is concluded, pursuant to
which other similarly-situated employees could do.
. . . [W]hat was encompassed by the Legislature was
economy of litigation so that these claims could be
brought in a collective manner as opposed to
individual pieces of litigation, and certainly that seems
to be the view and policy that was in the mind of the
Legislature when the statute was passed. So the
motion is denied for that reason.
The court further addressed the standing of the "similarly situated
employees" after trial and found plaintiffs sought relief on "behalf of
themselves as well as all similarly situated employees in their [c]omplaint, and
[f]irst [a]mended [c]omplaint." The court found it had already ruled, in its
decision on defendant's motion in limine, that the case would proceed without
the need or requirement that the case be certified as a class action, as it was not
required by the language in the ESLL or N.J.S.A. 34:11-56a25. The trial court
found the ESLL permits an employee to bring an action "for and on behalf of
himself or other employees similarly situated," and allows for the designation
of an agent or representative to maintain such an action.
A-0056-24
22
However, the trial court also acknowledged the need for due process to
defendant. Therefore, before awarding damages to "similarly situated
employees," it required the unnamed plaintiff employees to agree to
representative counsel and further agree to be bound by the court's prior
judgment. The court determined this post-trial process was required to ensure
only employees who affirmatively designated plaintiffs as their representatives
were included in the judgment.
The ESLL provides a right of an employee to file a civil action if an
employer violates its mandates. The ESLL at N.J.S.A. 34:11D-5 states:
Any failure of an employer to make available or pay
earned sick leave as required by this act, or any other
violation of this act, shall be regarded as a failure to
meet the wage payment requirements of the 'New
Jersey State Wage and Hour Law, [("NJWHL")]'
[N.J.S.A. 34:11-56a to -56a30], or other violation of
that act, as the case may be, and remedies, penalties,
and other measures provided . . . shall be applicable,
including, but not limited to, penalties provided
pursuant to [N.J.S.A. 34:11-56a22 and -56a24], and
civil actions by employees pursuant to . . . [N.J.S.A.
34:11-56a25], except that an award to an employee in
a civil act shall include, in addition to the amount
provided pursuant to [N.J.S.A. 34:11-56a25], any
actual damages suffered by the employee as the result
of the violation plus an equal amount of liquidated
damages.
The NJWHL in pertinent part states:
If any employee is paid by an employer less than the
minimum fair wage to which the employee is entitled
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under [this Act] . . . the employee may recover in a
civil action the full amount of that minimum wage less
any amount actually paid to him or her by the
employer . . . and an additional amount equal to not
more than 200 percent of [wages that were due].the
amount of unpaid minimum wages or wages lost due
to retaliatory action as liquidated damages plus costs
and reasonable attorney's fees as determined by the
court . . . . An employee shall be entitled to maintain
the action for and on behalf of himself or other
employees similarly situated, and the employee and
employees may designate an agent or representative to
maintain the action for and on behalf of all employees
similarly situated. The employee may bring the action
to recover unpaid minimum wages, or wages lost due
to retaliatory action, or other appropriate relief,
including reinstatement and payment of damages
pursuant to this section, in the Superior Court.
[N.J.S.A. 34:11-56a25 (emphasis added).]
"Whether a party has standing to pursue a claim is a question of law
subject to de novo review." Cherokee LCP Land, LLC v. City of Linden Plan.
Bd., 234 N.J. 403, 414 (2018). "Our courts generally take a liberal view of
standing. . . . But, standing is not automatic." N.J. Dep't of Env't Prot. v.
Exxon Mobil Corp., 453 N.J. Super. 272, 291-92 (App. Div. 2018). "To have
standing to maintain an action before the court, a party must have a sufficient
stake in the outcome, a real adverseness with respect to the subject matter, and
a substantial likelihood of some harm if the decision is unfavorable." In re
Project Authorization Under N.J. Reg. of Historic Places Act, 408 N.J. Super.
540, 555-56 (App. Div. 2009).
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The record demonstrates from the outset, in their complaint, the named
plaintiffs proceeded on behalf of all similarly situated employees 7 as permitted
in N.J.S.A. 34:11D-5 by its incorporation of N.J.S.A. 34:11-56a25. Plaintiffs
specifically sought discovery from defendant concerning payroll and leave
information surrounding the unnamed plaintiffs. The record further
demonstrates defendants provided responses to plaintiffs' interrogatories
concerning information relative to both named and similarly situated
employees over two years prior to trial. Defendant's responses to plaintiffs'
discovery requests specifically listed and included "time records . . . that
identify all hours worked and time off for the relevant employees from the
time the [CBAs] expired."
The record also reflects plaintiffs sought and defendant produced over
27,000 pages of records in discovery, most of which consisted of the unnamed
employees' payroll records. At trial, over defendant's objection, numerous
payroll documents were admitted and relied upon by the court in its decision
concerning the accrual and use of ESLL leave by the unnamed plaintiffs, in
7
In their interrogatory questions propounded upon defendants, plaintiff
utilized the term "Class Employee" for the similarly situated plaintiffs.
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particular all of the company's Paycom8 reports for all employees showing the
employees were not registered to take ESLL leave. In its decision, the court
referenced evidence consisting of a chart documenting and calculating unpaid
leave for all employees established violations of the unnamed plaintiffs' rights
under the ESLL. Also, to establish the hours work and rate of pay of the
unnamed employees, plaintiffs produced paystubs from the end of each
applicable year for each plaintiff by way of more than 140 separate exhibits
which were moved into evidence.
The trial court, referencing the statutory language and lack of controlling
procedural precedent, required a post-trial process for written designation and
certification of "similarly situated" employees, allowing all parties to verify
their participation and proper inclusion. During this post trial process,
defendant "stipulated"—although under reservation of its right to appeal—to
the damages for the unnamed plaintiffs set forth in the final judgment.
We conclude the unnamed plaintiffs had sufficient standing to assert
ESLL claims and were not required to certify a class at the pre-trial stage. The
ESLL specifically permits the named plaintiffs to also pursue claims for
similarly situated employees by its incorporation of N.J.S.A. 34:11-56a25
8
Paycom was an outside payroll company hired by defendant to provide
payroll services including the processing of employee leave time.
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through N.J.S.A. 34:11D-5. Named plaintiffs specifically filed their action
including "similarly situated employees" in the caption of the complaint and
the parties engaged in significant pre-trial discovery concerning the unnamed
plaintiffs prior to trial.
We further conclude neither the language at N.J.S.A. 34:11D-5 nor
N.J.S.A. 34:11-56a25 specifically requires class certification or collective
action procedures, the latter of which are typically brought in federal wage
claims. Simply put, the enabling statutory language in N.J.S.A. 34:11-56a25
permits an employee to maintain the action for and on behalf of themself or
other employees similarly situated, and the employee has the option to
designate an agent or representative to maintain the action for similarly
situated employees. There is no other requirement that affirmatively
necessitates or requires plaintiffs to file or notify a defendant of the identity of
the similarly situated employees by way of class certification or through class
discovery as asserted by defendant. If the Legislature intended to require class
certification or other procedures regarding "similar situated employees," it
would have specifically stated this in the statute, which it did not.
2.
We now turn to defendant's assertion that the court considered evidence
concerning the claims of unnamed plaintiffs without proper foundation and
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conclude there is no merit to this contention. The core basis of defendant's
argument concerns the trial testimony of its director of human resources , Steve
Parisi. Plaintiffs called Parisi as a witness in their case in chief and questioned
him concerning company payroll and leave records of the unnamed plaintiffs.
These records were kept by Paycom. Defendant's counsel objected to this
testimony and the entry of the records into evidence based on lack of
foundation. Defendant asserted Parisi did not have sufficient knowledge of the
records. The court overruled defendant's objection, based on Parisi signing a
certification attesting to the accuracy and truthfulness of the records as part of
defendant's response to plaintiffs' discovery demands.
We review challenged evidentiary rulings for abuse of discretion.
Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016). To find an abuse of
discretion, the evidentiary ruling must be "so wide off the mark that a manifest
denial of justice resulted." Ibid. (quoting Green v. New Jersey Mfrs. Ins. Co.,
160 N.J. 480, 492 (1999)). With respect to factual lay testimony, the
foundation for its admission is simply the witness's personal knowledge. See
N.J.R.E. 701; N.J.R.E. 602 ("[A] witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that the witness has
personal knowledge of the matter."); see also Neno v. Clinton, 167 N.J. 573,
585 (2001).
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After our careful review of the record, we conclude the court did not
abuse its discretion in admitting the proffered evidence. The records identified
the unnamed plaintiffs to show paid leave required by the ESLL was not
provided to them by defendant. Parisi testified he had personal knowledge of
the records and recognized them as company records provided from Paycom.
We discern no error or abuse of discretion concerning the court's admission of
this evidence through Parisi who we conclude had sufficient personal
knowledge of the records through his familiarity and review of the records as
director of human resources. We further point out defendant has neither
asserted that the records were inaccurate or unreliable, nor pointed to any
evidence showing it was unduly prejudiced by the admission of the
information contained in the payroll and leave documents. Defendants only
asserted that a foundational basis was lacking.
3.
We now address defendant's contention the court erred by permitting the
unnamed plaintiffs to opt in as plaintiffs and present proof of damages on a
post-trial basis. In this instance, rather than engaging in pre-trial discovery to
determine information for the unnamed plaintiffs' claims, defendant chose to
take a calculated risk by not engaging in detailed pre-trial discovery and
moved to exclude the unnamed plaintiffs' claims through a motion in limine.
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Based on the record before us, this pre-trial mechanism was the first time
defendant raised its class certification argument during the approximate two
and a half years the case was pending. We determine no evidence exists in the
record demonstrating defendant was inhibited from requesting the names of all
similarly situated employees and demanding plaintiffs to provide the basis for
and the amount of damages they were claiming through pre-trial discovery.
Nothing in the language of the ESLL or otherwise inhibits a party from
requesting information concerning the unnamed plaintiffs as part of pre-trial
discovery. We are satisfied that defendant's decision to forgo class
certification, other pre-trial procedures, and additional pre-trial discovery,
concerning the claims of the unnamed plaintiffs, is not a basis for reversal.
In addition, defendant has failed to demonstrate prejudice or an unjust
result occurred from the court's findings, orders, and post-trial procedures. See
R. 2:10-2 ("Any error or omission shall be disregarded . . . unless it is of such
a nature as to have been clearly capable of producing an unjust result. . . .").
The record reflects defendant was fully aware of the potential claims and
damages asserted by the unnamed plaintiffs based on the initial "similarly
situated employees" designation in the caption of plaintiffs' complaint, as well
as through the discovery responses defendant provided identifying the
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damages asserted by the unnamed plaintiffs through production of its payroll
company records.
Procedural due process requires notice and an opportunity to be heard.
Mettinger v. Globe Slicing Mach. Co., 153 N.J. 371, 389 (1998); see also Doe
v. Poritz, 142 N.J. 1, 106 (1995) ("Due process is not a fixed concept . . . but a
flexible one that depends on the particular circumstances. . . . Fundamentally,
due process requires an opportunity to be heard at a meaningful time and in a
meaningful manner.").
The trial court provided defendant with fair notice and ample
opportunity to be heard concerning the "opt in" of the unnamed plaintiffs. We
note the trial court did not impose any restrictions on defendant 's ability to
engage in pre-trial discovery regarding identification and damage claims of the
unnamed plaintiffs. Defendant was also provided with further protections
through the procedural post-judgment safeguards fashioned by the trial court.
These safeguards included requiring unnamed plaintiffs to provide a written
designation naming representative counsel, bind them to any judgment entered,
and provide defendant with an opportunity to challenge the designation and
contest the quantum of damages. We determine these procedures were
sufficient to protect defendant's due process rights.
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We note N.J.S.A. 34:11-56a25 provides for appropriate credits/offsets
for "any amount actually paid to him or her by the employer" but that
defendant never pursued such offsets at trial or in the post-trial procedure
determined by us to be appropriate herein. This is despite the fact that it had
possession of all the records for the leave plaintiffs were actually paid during
the relevant time periods. Hence, although the method utilized by the trial
court to compute plaintiffs' damages was supported by the record, it may not
be viewed as the "model" for other ESLL cases in the future.
III.
Based on the issues raised in this appeal and our determinations
concerning the identification and inclusion of similarly situated employees in
ESLL actions, we hereby refer these issues for consideration by the Civil
Practice Committee to consider certain prospective safeguards be adopted for
ESLL claims filed in the future.
We respectfully suggest a process be considered wherein the court holds
a conference shortly after the matter is joined wherein plaintiffs asserting
claims for similarly situated employees be required to disclose whether they
intend to certify a class of employees under the ESLL. If so, we suggest the
trial court could choose to set time limitations for class certification under
Rules 4:32-1 to -5. If not, we suggest the court might choose to set an
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appropriate procedure and time limitations for identification of, and discovery
surrounding, the "similarly situated" plaintiffs/employees. We suggest any
policy or rule that may be adopted should not restrict the flexibility of trial
courts to convene additional case management procedures to facilitate the
discovery process and motion practice that may present in specific actions
concerning ESLL claims.
We liken these suggested procedures to the safeguards required by our
Supreme Court in Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144
(2003). There, the Court held that, to ensure that discovery related issues
surrounding the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29, do not
become sideshows to the primary purpose of the civil justice system—to
shepherd legitimate claims expeditiously to trial—an accelerated case
management conference must be held within ninety days of the service of an
answer in all malpractice actions. Id. at 154. At the conference, the Court
required the trial court to address all discovery issues and set appropriate
procedures to resolve those disputes "to assist discovery . . . and promote the
orderly and expeditious progress of the case." Id. at 155, citing R. 4:5B-2.
We suggest for the Committee's consideration a similar procedure for
ESLL actions, which we anticipate will assist in the equitable and fair
disposition of these claims by balancing the rights of aggrieved employees to
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recover under the statute, and providing employers, alleged to have violated
the statute, proper notice and a full opportunity to defend against these claims.
Other effective measures, of course, may be identified, which we do not
foreclose the Committee from considering.
In the matter before us, although defendant was not provided the type of
early, pre-trial procedure we have suggested here, we conclude defendant was
not prejudiced because it had reasonable notice of the claims of the similarly
situated employees, had the opportunity to, and engaged, in discovery
concerning these employees' claims, and were provided with the ability to
defend the claims at trial and during the post-trial proceedings.
To the extent we have not addressed any of defendant's remaining
arguments, we conclude those arguments are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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