New Jersey Appellate Court Clears Path for Representative Actions Over Wages

Quick Hits

• In Martinez v. T. Slack Environmental Services, Inc., the Superior Court of New Jersey Appellate Division ruled that workers can bring a representative action under the state’s Wage and Hour Law, Prevailing Wage Act, and Earned Sick Leave Law without satisfying standards for a class action.
• The court found a two-year statute of limitations should apply to the employees’ overtime claims and earned sick leave claims, but a six-year statute of limitations should apply to their prevailing wage claims.
• The case was remanded to a lower court for further proceedings.

Background on the Case

T. Slack Environmental Services, Inc., is an environmental contracting and remediation business in New Jersey. In February 2020, Juan Martinez sued T. Slack for violations of the New Jersey Prevailing Wage Act (NJPWA), the New Jersey Wage and Hour Law (NJWHL), and the New Jersey Earned Sick Leave Law (NJESLL), both individually and on behalf of other hourly employees.

On public projects, Martinez performed work classified as Class B (meaning heavy physical labor) and Class C (meaning light-duty work) and should have been paid the prevailing wage rate under the NJPWA. However, he was paid at a lower hourly rate when working on private projects. During weeks in which Martinez performed both public and private work, he was paid at the lower, private rate, rather than a blended rate reflecting both types of work. When he performed work under different titles, such as laborer and ironworker, within the same week, he was paid overtime at the lower laborer rate instead of the weighted average rate based on both titles.

In addition to miscalculation of wages and overtime pay, Martinez claimed that he worked “off-the-clock” hours, including driving equipment to and from the worksite and the company headquarters, loading and unloading his truck, and traveling to and from the worksite. He argued these activities constituted compensable time under both the NJPWA and the NJWHL. He also alleged that earned sick leave was calculated using the lower, private wage rate, rather than a blended rate reflecting both public and private rates, during weeks in which he and other employees worked more than forty hours.

The company argued that Martinez did not satisfy the criteria for a class action, that he was not an adequate class representative, and that the putative class was not numerous enough because the company employed only fifteen putative class members during the years in question.

In December 2024, the Superior Court of New Jersey Civil Division (Middlesex County) certified the matter as a representative action and designated a six-year lookback period for overtime claims from February 28, 2014, to February 28, 2020. On appeal, the company argued that a two-year statute of limitations should apply.

Appellate Division’s Ruling

Citing its recent decision in Cano and Bonelli v. County Concrete Corp., the Appellate Division concluded that the case was properly deemed a representative action, and that a class certification was not required in this situation under the NJPWA, the NJWHL, or the NJESLL. The court explained that the NJPWA “permits a worker ‘to maintain such action for and on behalf of [them]self or other work[ers] similarly situated, and such work[er] and work[ers] may designate an agent or representative to maintain such action for and on behalf of all work[ers] similarly situated.’” The court held that the NJPWA “addresses the similar concerns of the WHL and the ESLL” and, as such, determining whether a representative action could be pursued or a class certification was required should be resolved “by the same standard.” While the company argued that the federal Fair Labor Standards Act (FLSA) class certification opt-in process should apply, the court rejected that contention, finding that neither the NJWHL nor the NJESLL contained “language comparable to the FLSA banning representative actions.”

The Appellate Division noted that the state legislature amended the NJWHL to add a six-year statute of limitations, effective August 6, 2019. Because Martinez’s claims arose prior to August 6, 2019, the appeals court concluded that the lower court improperly applied a six-year lookback period for the WHL and ESLL claims in this case. It held that an earlier two-year statute of limitations applied.

As to the NJPWA claims, however, the court found that they were comparable to breach of contract claims, which are subject to a six-year statute of limitations. The NJPWA “does not specify a look-back period or statute of limitations for civil actions,” the court stated. “In the absence of such limitations, courts apply the general limitations provision governing that category of claims.”

Key Takeaways

Employers in New Jersey that conduct work on public projects may wish to carefully evaluate their policies and practices regarding prevailing wages. This case shows there is a new heightened risk of representative actions against employers that fail to pay prevailing wages when legally required. It also indicates that employees may bring representative actions under the NJWHL, the NJPWA, and the NJESLL, and illustrates the importance of distinguishing between representative actions under state law and class actions under the FLSA.

Ogletree Deakins’ Morristown office and Wage and Hour Practice Group will continue to monitor developments and will post updates on the Class Action, New Jersey, and Wage and Hour blogs as additional information becomes available.

Leslie A. Lajewski is a shareholder in Ogletree Deakins’ Morristown office.

Steven J. Luckner is a shareholder in Ogletree Deakins’ Morristown office.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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