New Jersey: Employees Do Not Have a Right to Sue Employers Under Cannabis Law

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APPLIES TO

All Employers with NJ Employees

EFFECTIVE

May 25, 2023

  

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Quick Look

  • The New Jersey District Court ruled that only the state’s Cannabis Regulatory Commission (CRC), and not private citizens, has the authority to enforce the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA).
  • CREAMMA prevents employers from taking any adverse employment action based on a positive drug test alone.

Discussion

In Zanetich v. Wal-mart Stores East, the New Jersey District Court ruled that only the state’s Cannabis Regulatory Commission (CRC), and not private citizens, has the authority to enforce the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA). CREAMMA prevents employers from taking any adverse employment action based on a positive drug test alone. This means employees and applicants do not have a private right of action of adverse employment actions based on positive drug tests alone, only the CRC does.

Here, the plaintiff applied for a job at a Wal-Mart and received an offer subject to the successful completion of a drug test. The drug test revealed marijuana in the person’s system, and Wal-Mart rescinded the job offer. The plaintiff filed a class-action lawsuit alleging a violation of CREAMMA and failure to hire in violation of New Jersey public policy. The plaintiff argued that although CREAMMA’s text does not explicitly include a private cause of action, the New Jersey’s legislature created an implied cause of action when it enacted the law. In addition, New Jersey’s common law claim for wrongful termination also applies to applicants’ claims arising from a failure to hire.

The court disagreed on both claims. The court found there was no evidence of legislative intent to provide an implied private cause of action when an explicit right was not created. Well-settled case law also showed that there is no cause of action under common law for failure to hire. The court did however call on the state legislature to amend the statute to clearly indicate an intent to create a private cause of action, because its decision left the plaintiff without a remedy and rendered the language of the employment protections in the statute “meaningless.” This case is being appealed so stay tuned for additional updates.

Action Items

  1. Consult with legal counsel prior to taking adverse employment actions under CREAMMA.
  2. Have appropriate personnel trained on the requirements.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase