As many of you might remember, in the spring of 2023, I wrote a blog on a very controversial ruling in a case involving a critical issue of first impression under New Jersey’s Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, (“CREAMMA”). In that blog, I discussed how a federal judge in Camden, New Jersey ruled that remarkably the CREAMMA law did not allow an employment applicant whose job offer was revoked due solely to his use of recreational marijuana to sue for wrongful failure to hire, despite the fact that this law specifically precludes employers from taking adverse action against employees or job applicants solely based upon that very use. The ruling in Zanetich v. Wal-Mart Stores East, Inc. was ultimately appealed to the federal appeals court for the 3rd Circuit where recently the lower court’s decision of a lack of a private cause of action under CREAMMA was ultimately affirmed, meaning that at present, there is no private cause of action right to judicially enforce CREAMMA’s antidiscrimination provisions.
As a refresher on the case’s factual background, the Plaintiff had 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 indeed 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 lower court to conclude that the legislature intended for that agency to be the sole and exclusive designated forum to address these kinds of cannabis employment discrimination claims.
Like the District Court, the Appeals Court relied on well-established law that is utilized when determining whether an implied cause of action can be created where one is not expressly statutorily allowed. The Appeals Court agreed that ultimately the factors to be considered under that case law for supporting the finding of an implicit cause of action for wrongful failure to hire under CREAMMA were absent in the case and did not require the creation of an implied cause of action for job applicants under that statute.
Next, the Court considered the Plaintiff’s alternative argument that he could pursue his case for wrongful non-hiring as a Pierce claim that permits an employee to challenge an employer’s actions on public policy grounds. In rejecting this claim as well, the Appeals Court ruled that applicants for employment cannot bring a Pierce public policy claim because such claims have long only been legally recognized for those who are already employed and not mere applicants for employment. Finally, the Plaintiff also asked the Appeals Court to utilize a special procedure that would have enabled the case to be sent to New Jersey Supreme Court to get a ruling on this unique state court legal issue. That too was rejected as being unnecessary as there was no significant matter of public importance in the eyes of the Appeals Court and it would serve to only further delay the ultimate resolution of the case.
The foregoing decision will no doubt continue to surprise many seasoned labor and employment practitioners, and one can reasonably expect that this issue will be addressed by the New Jersey legislature at some point. Also, one significant issue left open is whether this case would have been decided differently had an actual employee been terminated for marijuana use. One could argue that differing considerations there might have led to the recognition of an implied right of action for wrongful discharge under CREAMMA, especially should such a case of that kind be brought in a state rather than federal court where such issues are more liberally construed in favor of employees.
Thus, despite this recent federal appellate decision, employers should always proceed with caution anytime there is any thought about disciplining an individual for marijuana use. Discrimination due to cannabis use is clearly illegal under CREAMMA, and employers should never act in any legally prescribed way that could impair employee rights in the workplace.