NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1008-24
JUAN MARTINEZ,
Plaintiff-Respondent,
APPROVED FOR PUBLICATION
v. June 29, 2026
APPELLATE DIVISION
T. SLACK ENVIRONMENTAL
SERVICES, INC. and
THEODORE SLACK,
Defendants-Appellants.
Argued March 17, 2026 ‒ Decided June 29, 2026
Before Judges Marcyk, Bishop-Thompson and Puglisi.
On appeal from the Superior Court of New Jersey,
Law Division, Middlesex County, Docket No. L-1335-20.
Aaron L. Peskin argued the cause for appellants (Kang
Haggerty LLC, attorneys; Ralph P. Ferrara and Aaron
L. Peskin, on the briefs).
David Tykulsker argued the cause for respondent
(David Tykulsker & Associates, attorneys; David
Tykulsker, on the brief).
Ryan P. McCarthy argued the cause for amicus curiae
National Employment Lawyers Association-New
Jersey (Goodley McCarthy LLC, attorneys; Ryan P.
McCarthy, on the brief).
The opinion of the court was delivered by
BISHOP-THOMPSON, J.A.D.
In this wage and hour dispute, we address two important issues. First,
whether a representative action brought pursuant to the Wage and Hour Law
(WHL), N.J.S.A. 34:11-56a to -56a43, and the Prevailing Wage Act (PWA),
N.J.S.A. 34:11-56.25 to -56.47, is distinct from a class action pursuant to Rule
4:32-1. Second, we consider the appropriate statute of limitations applicable
to companion wage claims.
Defendants Theodore Slack and T. Slack Environmental Services, Inc.
(T. Slack) appeal from the December 6, 2024 Law Division interlocutory
order, which granted plaintiff Juan Martinez's motion to certify this matter as a
representative action under the WHL and the PWA. Martinez was also
designated as the representative of defendants' current and former employees.
On appeal, defendants contend the motion court erred in determining: (1) the
WHL allows for a representative action independent of Rule 4:32-1; (2)
Martinez justified class treatment despite the failure to provide evidence of
other similarly situated employees; and (3) even if the representative class was
justified, the court improperly applied a six-year look-back period. We
granted the National Employment Lawyers Association-New Jersey (NELANJ) leave to appear as amicus curiae.
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We affirm in part and reverse in part. Consistent with our holding in
Cano v. County Concrete Corp., 483 N.J. Super. 459 (App. Div. 2026), we
conclude the statutory language of both the WHL and PWA is independent of
Rule 4:32-1 and therefore does not require class certification. We further
conclude the motion court properly considered the parties' submissions and
correctly determined the proposed class of hourly employees was similarly
situated to other employees of T. Slack.
However, we reverse the portion of the order establishing a six-year
look-back period for claims under the WHL and, by incorporation, the Earned
Sick Leave Law (ESLL), N.J.S.A. 34:11D-1 to -13. The court mistakenly
applied a six-year look-back to the WHL claim, when a two-year statute of
limitations period applies. In contrast, the six-year statute of limitations
period was properly applied to the PWA claim, which is a breach of contract
claim.
I.
Theodore Slack is the president and principal officer of T. Slack, a
small, non-union contractor with its principal place of business in New Jersey.
While the majority of T. Slack's projects were public works, it also undertook
private jobs.
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From 2006 to 2019, Martinez was employed by T. Slack as an hourly
laborer, paid at the "D" laborer prevailing rate. According to Martinez, during
this period, T. Slack employed between six and ten hourly laborers, all of
whom were subjected to the same pay practices.
While performing public work for defendants, Martinez carried out a
variety of tasks classified as "B" and "C" laborer functions and should have
been paid the appropriate prevailing wage rate under the PWA. 1 However, he
was paid at a lower hourly rate when working on private projects.
1
The New Jersey Department of Labor and Workforce Development issues the prevailing wage rate determination. The comments/notes section of the wage rate for the Heavy & General Laborers – North set forth the following classifications:
"D" Rate:
basic, landscape, asphalt, slurry seal, or railroad track
laborer; utility meter installer; flagman; salamander tender;
pitman; dumpman; rakers or tampers on cold patch work;
wrappers or coaters of pipe; waterproofer; timberman;
wagon drill or drill master helper; powder carrier; magazine
tender; signal man; power buggy operator; tree cutter;
operator of basic power tools[.]
"C" Rate:
pipe layer; laser man; conduit or duct line layer; operator of
jack hammer, chipping hammer, pavement breaker, concrete
cutter, asphalt cutter, sheet hammer, or walk-behind saw
cutter; sandblaster; acetylene cutting or burning; wagon
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Martinez also alleges defendants failed to pay him a properly calculated
blended overtime rate, as required by N.J.S.A. 34:11-56a25 of the WHL and
N.J.S.A. 34:11-56.40 of the PWA, in two specific situations. 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.
And in other weeks, 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.
Martinez further claims he worked "off-the-clock" hours, including
driving equipment to and from the worksite and defendants' Kenilworth
drill, directional drill, or hydraulic drill operator; drill
master; core driller; asphalt raker or lute man[.]
"B" Rate:
concrete finisher; setter of brick or stone pavers; stone
cutter; form setter; manhole, catch basin, or inlet builder;
asphalt screedman; rammer; hardscaping; gunite nozzle
man[.]
[Dep't of Labor & Workforce Dev., Prevailing Wage Rate
Determination (July 3, 2024),
https://lwdwebpt.dol.nj.us/archivewages/185095718-statewide
-7-3-24.pdf.]
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facility, loading and unloading his truck, and traveling to and from the
worksite. He argues these activities constitute compensable work time under
both the PWA and the WHL. In addition, Martinez asserts earned sick leave
was likewise 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 laborers worked more than forty hours.
In February 2020, Martinez initiated a lawsuit alleging violations of the
PWA, WHL, and ESLL, both individually and on behalf of similarly situated
hourly employees. Martinez claimed defendants failed to pay overtime wages
at the blended rate for work performed on both public and private projects,
failed to pay the required wages, and did not compensate him for his "off -theclock" work. He also alleged defendants violated the ESLL by failing to pay
proper sick leave wages. Martinez sought compensatory and liquidated
damages, and other statutory relief for himself and other similarly situated
employees.
Discovery was conducted under the supervision of a special adjudicator.
During this process, defendants provided Martinez with the names and contact
information for their hourly employees, all of whom resided in or near New
Jersey. Following the special adjudicator's instructions, in September 2024,
Martinez moved to certify a statutory representative action under the WHL and
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PWA, seeking to be designated as a representative for both current and former
employees.
Defendants opposed the motion on several grounds. First, they argued
Martinez had not satisfied the class action requirements set forth in Rule 4:32-1, and a representative action was not permissible outside of this Rule.
Second, they contended the "putative class" was not sufficiently numerous, as
defendants employed no more than fifteen putative class members,
representing all employees, between 2018 and 2020. Third, defendants
asserted Martinez was not an adequate class representative. Finally, they
argued the presence of individualized questions and the need for individualized
damage calculations precluded both representative and class treatment of the
claims.
After hearing argument, the motion court rendered an oral decision. It
explained the matter qualified as a representative action, as permitted under
both the WHL and the PWA. The court further stated it was satisfied the
pleadings sufficiently alleged facts under those statutes. Accordingly, the
court certified the matter as a representative action and designated Martinez as
the representative. The court also designated a "six-year look[-]back period"
for overtime claims, from February 28, 2014, to February 28, 2020.
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The court directed defendants to provide Martinez with the current or
last-known mailing address and other contact information for the
representative employees within fifteen days of the order. It further directed
the parties' counsel to meet and confer concerning the contents of a notice to
be sent to those employees. If the parties could not agree on the notice's
contents, they were instructed to notify the court and submit the agreed -upon
provisions. The court would then resolve any remaining disagreements and
approve the final form of the notice. Once approved, the notice would be
mailed to the represented employees.
Defendants reprise the arguments presented before the motion court.
They argue it erred in determining the WHL permits a representative action
independent of Rule 4:32-1. Also, the court improperly found Martinez
justified class treatment, despite his failure to present evidence of other
similarly situated employees. Finally, defendants assert, even if a
representative class was warranted, the court misapplied a six-year look-back
period. In support of this argument, they cite to Maia v. IEW Construction
Group, 257 N.J. 330 (2024), which held amendments to the WHL extending
the statute of limitations from two years to six years, should be applied
prospectively, not retrospectively.
II.
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We must first determine whether this appeal is properly before us absent
a motion for leave to appeal. Defendants rely on Rule 2:2-3(b)(9), which
provides for an appeal as of right from orders entered pursuant to Rule 4:32.
However, this reliance is misplaced because the representative action order
does not implicate Rule 2:2-3.
In addition, the order under review is not appealable as of right under
Rule 2:2-3(a)(1), as it is interlocutory in nature and may only be reviewed
upon leave granted under Rule 2:2-4. "[O]ur general policy . . . favor[s] . . .
'restrained appellate review of issues relating to matters still before the trial
court' to avoid piecemeal litigation." Harris v. City of Newark, 250 N.J. 294,
312 (2022) (quoting Moon v. Warren Haven Nursing Home, 182 N.J. 507, 510
(2005)). Nevertheless, in the interest of prompt resolution and in light of the
important public policy considerations regarding wage rates in employment,
we deem defendants' notice of appeal as a motion for leave to appeal from the
interlocutory order, and we grant the motion as timely. See R. 2:4-4(b)(2); see
also N.J. Mfrs. Ins. Co. v. Prestige Health Grp., LLC, 406 N.J. Super. 354,
358-59 (App. Div. 2009).
III.
Two statutes are central to this appeal; accordingly, questions of
statutory interpretation are reviewed de novo. Lopez v. Marmic LLC, 263 N.J.
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225, 240 (2026). "The primary goal of statutory analysis is to understand and
implement the Legislature's intent." State, Div. of State Police v. N.J. State
Trooper Captains Ass'n, 441 N.J. Super. 55, 62 (App. Div. 2015). We must
look first to the "statute's actual language and ascribe to its words their
ordinary meaning." Kean Fed'n of Tchrs. v. Morell, 233 N.J. 566, 583 (2018).
By doing so, we read each statutory provision "in relation to other constituent
parts so that a sensible meaning may be given to the whole of the legislative
scheme." Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 572
(2012). "If the plain language leads to a clear and unambiguous result, then
our interpretive process is over." Richardson v. Bd. of Trs., 192 N.J. 189, 195
(2007).
However, "[w]e do not view words and phrases in isolation but rather in
their proper context and in relationship to other parts of a statute, so that
meaning can be given to the whole of an enactment." N.J. State Trooper
Captains Ass'n, 441 N.J. Super. at 63. "[W]hen construing a statute, [the
court] presume[s] that the Legislature created a logical scheme that avoids
contradictions." Ibid.
Unless an issue goes to the jurisdiction of the trial court or concerns
matters of substantial public interest, we will ordinarily not consider it. Neider
v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). However, we review issues
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of "great public interest," and the issue here pertains to similarly situated
employees in a representative wage action in the context of public works
projects. This issue implicates public policy regarding the protection of wage
rates for workers employed on public works projects, ensuring statutory wage
protections are properly enforced and applied to all eligible employees . While
defendants did not brief the PWA claim, we consider this claim because the
contract wage claim is inextricably linked with the companion WHL and ESLL
claims.
The WHL was enacted to "protect employees from unfair wages and
excessive hours." Hargrove v. Sleepy's, LLC, 220 N.J. 289, 304 (2015)
(quoting In re Raymour & Flanigan Furniture, 405 N.J. Super. 367, 376 (App.
Div. 2009)). Its declared purpose is "to establish a minimum wage level for
workers in order to safeguard their health, efficiency, and general well-being
and to protect them . . . from . . . serious and unfair competition resulting from
wage levels detrimental to their health, efficiency, and well-being." N.J.S.A.
34:11-56a. These statutes are modeled on, and are substantially similar to, the
Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219, and our courts look
to the FLSA regulations for guidance. Marx v. Friendly Ice Cream Corp., 380
N.J. Super. 302, 309 (App. Div. 2005).
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The PWA is designed to establish minimum wage levels for workers
engaged in public works projects within New Jersey. Like the WHL, the
public policy is "to safeguard the[] efficiency and general well[-]being and to
protect [workers] . . . from . . . unfair competition resulting from wage levels
detrimental to efficiency and [their] well-being." N.J.S.A. 34:11-56.25. New
Jersey's county-specific prevailing wage rates are based on, and mirror, federal
prevailing wage rates, as determined by the United States Department of Labor
under the Service Contract Act of 1965, 41 U.S.C. §§ 6701-6707.
Defendants argue the representative action under the WHL must be
certified in a manner similar to a class action and, therefore, is not independent
of Rule 4:32-1. They contend the "similarly situated" standard does not satisfy
the procedural requirements necessary to establish a class action. In support of
their position, defendants point out while the WHL is similar to the FLSA and
provides guidance, the FLSA specifically requires employees who wish to
participate in a collective action to provide written consent, which must be
filed with the court where the action is brought. 29 U.S.C. § 216. They argue
the Portal-to-Portal Act (PTPA) amended the FLSA, which aimed to prohibit
representative actions. This amendment was intended to address excessive
litigation by plaintiffs who did not have a personal interest in the outcome.
See Portal-to-Portal Act of 1947, ch. 52, §§ 5(a), 6-7, 61 Stat. 87-88 (codified
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as amended at 29 U.S.C. §§ 255(a), 251-262). As a result, a worker must
affirmatively "opt-in" to become a member of a class or collective action.
NELA-NJ joins with Martinez and argues the Legislature intended for
the remedial policy of the WHL to provide for a separate and distinct
representative action from Rule 4:32-1 upon its enactment in 1966. It
contends the plain language—"similarly situated"—of the WHL is
substantially similar to the FLSA. Moreover, the Legislature expressly
excluded language similar to the PTPA.
Recently, in Cano, we held the named plaintiffs could pursue claims on
behalf of similarly situated employees by incorporating violations and
remedies under the WHL, N.J.S.A. 34:11-56a25, through the violations and
remedies provided by the ESLL, N.J.S.A. 34:11D-5. 483 N.J. Super. at 481.
We further concluded "neither the language at N.J.S.A. 34:11D-5 [of the
ESLL], nor N.J.S.A. 34:11-56a25 [of the WHL] specifically requires class
certification or collective action procedures, the latter of which are typically
brought in federal wage claims." Id. at 482.
In Cano, the defendant appealed from the denial of its motion in limine
to preclude the admission of documents, evidence, testimony, or argument
related to similarly situated employees. Id. at 478. The named plaintiffs,
union hourly drivers, filed a complaint alleging ESLL violations on behalf of
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themselves and other similarly situated employees after their collective
bargaining agreement expired. Id. at 467-68. During discovery, plaintiffs
obtained payroll records, personnel policies, and communications regarding
leave for all worksites. Id. at 468. We affirmed the denial of defendant's
motion and concluded the unnamed plaintiffs had sufficient standing to assert
ESLL claims and were not required to certify a class at the pre-trial stage. Id.
at 481, 487.
Following Cano, the parties here submitted supplemental briefs in
accordance with Rule 2:6-2(b). Both Martinez and the NELA-NJ contend
Cano "provides strong additional bases to affirm" the motion court's ruling.
In contrast, defendants argue Cano is not binding authority, citing
Brundage v. Estate of Carambio, 195 N.J. 575, 593 (2008), and therefore, we
are not obligated to follow its holding. They contend the motion court
improperly created a procedural mechanism for unnamed representative
members "on the fly after trial," due to the absence of guidance in either the
Rules of Court or the ESLL, and in the absence of any precedent. Nonetheless,
even if we were to adopt the reasoning in Cano, its holding would render the
order moot, as class certification would not have been necessary. Accordingly,
defendants urge us to reverse the order and remand with instructions to follow
the procedures outlined in Cano.
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We reject defendants' contentions. The remedial nature of the PWA
permits any 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." N.J.S.A. 34:11-56.40. This statute
addresses the similar concerns of the WHL and the ESLL and should resolve
the similar issue, such as the unequal wage rates of those seeking the
protection of the three statutes, by the same standard. See Hargrove, 220 N.J.
at 313.
We are unpersuaded by defendants' contention Martinez was required to
present evidence of other similarly situated employees in order for the matter
to qualify as a representative action. They argue we should be guided by the
FLSA standards: the opt-in process for conditional certification and
Martinez's obligation to satisfy the burden of demonstrating the other
employees are similarly situated for final certification.
As in Cano, Martinez's complaint put defendants on notice regarding the
existence of similarly situated employees. The plain language of the PWA and
WHL is the "best indicator" of the legislative intent. See Finkelman v. Nat'l
Football League, 236 N.J. 280, 289 (2019) (citing DiProspero v. Penn, 183
N.J. 477, 492 (2005)). Neither statute contains language comparable to the
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FLSA banning representative actions. Indeed, our Legislature was aware the
PTPA amended the FLSA because the WHL was adopted in 1966. Hargrove,
220 N.J. at 313.
Additionally, these statutes do not mandate Martinez, as the named
plaintiff, to identify the similarly situated employees to defendants. See Cano,
483 N.J. Super. at 482. Further, defendants were already aware of the
approximately fifteen employees, as their names and other contact information
had previously been provided to Martinez. Defendants' argument the putative
class lacked numerosity is equally unpersuasive, and in light of our holding in
Cano, we need not address this argument.
We see no reason to depart from Cano's holding that a representative
action under the WHL and PWA does not require class certification under Rule
4:32-1. Accordingly, there is no basis to treat the three statutes differently;
rather, they should be applied in tandem.
We reject defendants' argument, under our reasoning in Cano, the order
under review would be rendered moot by making class certification
unnecessary. Courts will not reverse based on technical errors unless there is a
showing of actual prejudice or an effect on the outcome. State v. Cotto, 471
N.J. Super. 489, 537 (App. Div. 2022); R. 2:10-2. Both the technical and
typographical error of class certification on the order does not alter the
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statutory requirements of the WHL and PWA. Martinez is permitted to be
designated as a representative; and the matter is permitted to proceed as a
representative action. We therefore conclude the order under review was not
rendered moot by our holding in Cano.
IV.
Defendants argue for the first time on appeal a two-year statute of
limitations applies to wage violations under the WHL. Moreover, the motion
court misapplied N.J.S.A. 34:11-56a25.1 and should have applied the two-year
look-back rule established in Maia, 257 N.J. at 347. See Iliadis v. Wal-Mart
Stores, Inc., 191 N.J. 88, 116 (2007) (classifying the WHL's previous two-year
"look-back" provision as a statute of limitations). They acknowledge the
Legislature amended the WHL, effective August 6, 2019, to add a six-year
look-back provision under N.J.S.A. 34:11-56a25.1. The provision reads: "No
claim for unpaid minimum wages[ or] unpaid overtime . . . shall be valid with
respect to any such claim which has arisen more than six years prior to the
commencement of an action for the recovery thereof." It further reads: "In
determining when an action is commenced, the action shall be considered to be
commenced on the date . . . where a cause of action is commenced in a court of
appropriate jurisdiction." Ibid.
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In Maia, our Supreme Court held the "[WHL] is to be applied
prospectively to conduct that occurred on or after August 6, 2019[—]Chapter
212's effective date[—]not retroactively to conduct that occurred before the
effective date." 257 N.J. at 351. The Court explained "the Legislature
expressly stated in Section 14 of Chapter 212 that the new provisions 'shall
take effect immediately.' L. 2019, c. 212 § 14." Id. at 352.
Here, the court established a "six-year look[-]back period" for overtime
claims from February 28, 2014, to February 28, 2020. Given the Legislature's
explicit intent, we conclude the motion court mistakenly applied a six-year
statute of limitations period for the WHL and, by incorporation, the ESLL
claims. We therefore reverse that portion of the order.
On the other hand, Martinez's claim for additional wages based on
defendants' alleged violation of the PWA is a claim for breach of contract. As
noted, the overarching policy of the PWA is to protect employees on public
works projects and requires the inclusion of the prevailing wage rate in all
contracts for public work. N.J.S.A. 34:11-56.27. Under N.J.S.A. 34:11-56.40,
a worker may recover "the full amount of [the] prevailing wage." However,
that provision does not specify a look-back period or statute of limitations for
civil actions. In the absence of such limitations, courts apply the general
limitations provision governing that category of claims. Troise v. Extel
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Commc'ns, Inc., 345 N.J. Super. 231, 236 (App. Div. 2001). Consequently,
statutory claims under the PWA are comparable to a claim for "breach of
contract or other economic harm" such that they should be "subject to the sixyear limitations period provided by N.J.S.A. 2A:14-1 for breach of contract."
Id. at 237-38.
Guided by these principles, we are satisfied the court properly
determined the six-year look-back provision for the PWA claims of Martinez
and the other similarly situated employees. Accordingly, we affirm this
portion of the order.
To the extent we have not addressed any of defendants' remaining
arguments, we conclude they are without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.
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