New Jersey’s Earned Sick Leave Law (ESLL) is supposed to be simple: you earn paid sick time as you work, and you can use it for health needs and certain family and safety-related situations without risking your job. In the real world, some employers try to fit their existing paid time off (PTO) policies into the ESLL without meeting the law’s requirements. A recent preceden
This case is important if you work in New Jersey and your employer tells you that “vacation time covers everything,” refuses to recognize sick leave rights, requires documentation that feels excessive, or makes it difficult to take time off for protected reasons.
Paid Sick Leave Versus a “Vacation Policy”
William Cano and Raymond Bonelli sued their employer, County Concrete, claiming the company violated the ESLL. Among other things, they argued that the company’s “vacation” policy did not satisfy the requirements of the ESLL.
The trial court found multiple ESLL violations and entered judgments for Mr. Cano and Mr. Boneilli. It also allowed the case to move forward on behalf of other similarly situated employees and awarded damages for a group that ultimately included over one hundred additional workers. The Appellate Division affirmed on appeal.
“We Offer Vacation” Is Not Automatically Complaint with the ESLL
As the Appellate Division recognized in Cano v. County Concrete Corp., the ESLL allows employers to use a PTO model instead of a separate “sick leave bank,” but only if employees can use their PTO for all of the reasons the ESLL protects, the PTO accrues at least as generously as the statute requires, and there are no other restrictions that conflict with the ESLL.
The appellate court agreed with the trial court that the employer’s policy was not compliant because, in practice, it did not provide paid leave for the full range of ESLL-protected reasons and imposed restrictions that undercut the law’s rules regarding how time off accrues and can be used. For example, it did not allow employees to use PTO for a family member’s diagnosis, care or treatment for a health condition; a family member being a victim of domestic or sexual violence; or time off for covered school-related conferences, meetings, functions and events for the employee’s child. It also impermissibly allowed the employer to require a doctor’s note for illness-related absences of less than three days.
Notice and Recordkeeping Violations Can Seriously Hurt an Employer’s Defense
The ESLL requires employers to post and provide notice of employees’ rights under it, and requires employers to keep certain records for five years. In Cano, the courts found the company’s notice was inadequate and not properly provided across worksites, and failed to provide the required individualized notice.
The recordkeeping problems were a big deal. The courts found the employer’s records did not adequately reflect employees’ hours worked and sick leave earned sufficiently to be able to determine whether the company was complying with the requirements of the ESLL.
Similarly Situated Employees May Be Included Without a Traditional Class Case
This case also is notable because the court allowed the claims of “similarly situated employees” to move forward without the usual class certification process people associate with large workplace cases. The court focused on the language in New Jersey’s wage and hour enforcement framework that permits employees to pursue claims on behalf of themselves and other similarly situated employees.
The trial court implemented safeguards after trial to address fairness and due process, including a process for additional employees to affirmatively opt in and confirm representation. The Appellate Division agreed that, in these circumstances, the employer had notice and opportunity to defend itself against those claims.
What This Decision Means for New Jersey Employees
If you are wondering whether your situation fits what the ESLL protects, this case is a useful guidepost. You may want to take a closer look if any of the following sound familiar:
- Your employer says you “only have vacation” time, which you are not allowed to use for your own medical appointments, medical appointments for a family member, or other ESLL-protected reasons
- You are required to provide a doctor’s note or other documentation when you were off from work for less than three days
- The company routinely denies requests for time off for medical reasons or other reasons covered by the ESLL, or acts as if granting those requests is discretionary
- Your workplace does not post ESLL notices or provide clear written information about your rights under it
- Your pay records do not show sick leave accrual and use in any clear way
- Newer employees are told they cannot take any paid time off until they hit a tenure milestone, even though the ESLL is based on hours worked
If you face these types of issues, it does not necessarily mean you have a claim, but it does mean you should consider getting legal advice before you assume your employer’s policy is “just how it is.”
Talk With Rabner Baumgart Ben-Asher & Nirenberg, P.C. About New Jersey Earned Sick Leave Issues
If you believe your employer’s paid leave policy did not comply with New Jersey law, or you were denied earned sick leave you should have been allowed to use, the Bergen County employment lawyers at Rabner Baumgart Ben-Asher & Nirenberg, P.C. can help you understand your options and what next steps make sense for your situation. To speak with an attorney, call (201) 777-2250.