In Cano v. County Concrete Corp., No. A-0056-24 (App. Div. Jan. 28, 2026), the New Jersey Appellate Division issued its first published decision interpreting the New Jersey Earned Sick Leave Law (“ESLL”), providing significant guidance to employers on the statute’s scope and enforcement. The court made clear that noncompliance with the ESLL’s recordkeeping requirements creates a presumption that an employer failed to provide the earned leave required by law, employers must strictly comply with the ESLL’s accrual, use, notice, and recordkeeping requirements, and employers may face broad liability to similarly situated employees, even absent formal class certification.
The plaintiffs, hourly drivers employed by County Concrete and represented by several unions, were subject to collective bargaining agreements (“CBAs”) that provided for three days of bereavement leave, six paid holidays, and vacation time based on tenure. For vacation time, 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.
After the CBAs expired, plaintiffs filed suit on behalf of themselves and more than 100 similarly situated employees, alleging that the company failed to provide paid sick leave in accordance with the ESLL.
At trial, the Superior Court found that the company failed to comply with multiple ESLL requirements, including notice, recordkeeping, and the provision of statutorily compliant leave. The trial court also found that the employer did not qualify for the statute’s construction industry exemption because it did not engage in the construction of buildings. The court ultimately awarded damages and implemented a process to identify additional previously unnamed plaintiffs/employees.
The Appellate Division affirmed and expanded upon the trial court’s reasoning, holding that County Concrete violated the ESLL in several respects. The court rejected the employer’s argument that its vacation policy satisfied the statute, finding it non-compliant because it did not permit leave for all ESLL-protected purposes. The court also found unlawful the company’s requirement that employees provide a doctor’s note for any illness-related absence, as well as its accrual and usage policies, which were more restrictive than the ESLL permits. Critically, the court emphasized the employer’s failure to maintain adequate records of accrued and used sick leave, triggering a statutory presumption that the employer failed to provide the required leave. The court further noted that the employer failed to provide proper notice of ESLL rights, pointing to insufficient and obscure workplace postings.
In addition, the Appellate Division confirmed that the ESLL incorporates the enforcement mechanisms of the New Jersey Wage and Hour Law (“NJWHL”). As a result, employees may pursue claims on behalf of themselves and other similarly situated employees without the need for formal class certification. Applying these principles, the court affirmed liability totaling approximately $1.37 million in statutory damages, liquidated damages, and penalties for the named plaintiffs and 133 additional employees.
Key Takeaways for Employers
This decision underscores the importance of strict compliance with the ESLL. Employers should ensure that any PTO or vacation policies fully satisfy ESLL requirements, including permitting leave for all statutorily protected purposes. Policies that impose additional restrictions, such as overly broad documentation requirements or accrual limitations, may expose employers to liability. Employers must also maintain accurate records of leave accrual and usage and provide clear, accessible notice of employee rights under the statute.
Equally significant, Cano highlights the substantial litigation risk associated with ESLL non-compliance. By confirming that claims may be brought on behalf of similarly situated employees without formal class procedures, the decision lowers the barrier for large-scale wage and hour-style claims. Employers should proactively audit their leave policies and practices to mitigate the risk of significant exposure under the ESLL.
Please contact an NFC team member if you have any questions or seek further assistance.