In a case involving a critical issue of first impression under New Jersey’s Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, (“CREAMMA”), a federal judge in New Jersey has ruled that remarkably the CREAMMA law does not allow an employee whose job offer was revoked due solely to his use of recreational marijuana to sue for wrongful failure to hire, despite the fact that the law specifically precludes employers from taking adverse action against employees or job applicants solely based upon that very use.
In the Zanetich case, ______ F. Supp. 4th ____ (D.N.J. 2023), the Plaintiff filed a job application for employment with the Defendant employer. An offer of employment was conditionally extended by Defendant, subject to a negative drug test. Plaintiff’s drug test came back positive for recreational marijuana use. Defendant thereafter proceeded to revoke the previous extended job offer, based solely on the drug test showing positive use of marijuana only.
Thereafter, the Plaintiff filed a class action suit on his own behalf and other similarly situated employees who had wrongfully had a past job offer revoked exclusively because of a positive drug test result for legalized marijuana use in New Jersey. The Defendant eventually moved to dismiss the lawsuit, claiming that there was nothing expressly included in the CREAMMA law that allowed for the bringing of any sort of employment discrimination lawsuit asserting a violation of CREAMMA. Remarkably, despite its prohibition on taking any sort of adverse employment action against an employee or applicant for employment based solely upon that person’s use of legalized marijuana, there is nothing in the law that expressly gives affected employees the right to bring such a lawsuit. Rather, the CREAMMA law created an agency, the Cannabis Regulatory Commission, and gave it the right to regulate, investigate, and prosecute violations of CREAMMA. This provision of the law ultimately led the court to conclude that the legislature intended for that agency to be the exclusive designated forum to address these kinds of cannabis employment discrimination claims.
The Court began its analysis of the issue by noting that, as all acknowledged, the CREAMMA law had no explicit right of private action provision that would allow the lawsuit to continue. It next considered whether as Plaintiff argued, there was a private right of action that could be implied by the structure of the law. The court ultimately rejected this contention, finding instead that the legislation vested exclusive enforcement authority over the law in the Cannabis Regulatory Commission, which the court admitted had not yet acted in any way to give employees in Plaintiff’s situation access to any present avenue for available relief when employers ignore CREAMMA’s prohibitions on employment discrimination against marijuana users. In ultimately dismissing the case, the Court urged the legislature to either amend the law if it wished to grant a private right of action to affected employees to enforce the law, or the Commission needed to pass regulations covering these types of situations, so a remedy is made available to such employees in the future.
The foregoing decision no doubt has surprised many seasoned labor and employment practitioners. Given how liberal New Jersey courts interpret these kinds of laws, most expected that a private right of action would have long been implied by some state court decision. Interestingly, this case began in state court, but the Defendant here was able to remove it to federal court. So, what should employers do in light of this case? Should this decision now stand as an open invitation for employers to ignore the prohibitions of CREAMMA and start taking adverse employment actions against employees who use marijuana outside the workplace? I would strongly respond no, because federal decisions about state law are not binding on state court judges. We can also reasonably expect that somewhere down the line in the not too distant future that a state court judge in New Jersey will reach a different conclusion than what was decided here in Zanetich and likely find a possible implied cause of action. No doubt, the legal standard used by the Zanetich court here could easily have been applied to reach a very different conclusion.
Therefore, employers must continue to think twice and proceed carefully before ever moving on the urge to either fire, discipline, or not hire employees who test positive for marijuana use. Accordingly, whether or not there is presently a current mechanism for enforcement of CREAMMA’s anti-discrimination prohibitions, discrimination due to cannabis use is clearly still illegal under CREAMMA and employers should never act in illegally prescribed ways in the workplace.
