On Thursday, March 12, the Appellate Division will hear oral argument in Martinez v. T. Slack Environmental Services, Inc. The issue presented is whether plaintiff’s lawsuit, predicated on the New Jersey Wage and Hour Law, and the Prevailing Wage Act, must satisfy the criteria of Rule 4:32, the class action rule. The Law Division found that unnecessary.

Among other things, defendants argue that the two statutes, each of which authorizes representative actions on behalf of persons “similarly situated,” a phrase that also appears in class action jurisprudence, does not provide any mechanism or standards for such suits other than using Rule 4:32. That result, defendants say, allows such cases to proceed in virtually every instance, a result that defendants say could not have been intended. If Rule 4:32 applied to this case, the case would fail, as plaintiff has not satisfied several of the criteria of that Rule, according to defendants.

Plaintiff responds, among other things, that the Legislature could have made Rule 4:32 applicable, but did not, and that a Court Rule cannot override a statute. Plaintiffs also observe that the law is intended to allow “all workmen” to bring an action, but many work for small businesses with twenty or fewer employees. If Rule 4:32 applied, such employees could never satisfy that Rule’s numerosity requirement (as interpreted in caselaw) that “similarly situated” employees must number at least twenty.

Each side notes that the statutes have been amended more than once since their original enactment, but the Legislature neither incorporated Rule 4:32 (a fact that favors plaintiff) nor specified another set of procedures (a fact that favors defendants). The panel will have an interesting argument on its hands, as defendants claim that the issue presented is “novel,” and plaintiff states that it “has not been the subject of any previous appellate decision.”