In 2021, the New Jersey Legislature enacted the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“CREAMMA”) to legalize and regulate marijuana use in the State of New Jersey. Among its provisions, CREAMMA prohibits New Jersey employers from refusing to hire a job applicant for the use of cannabis, as well as protects employees from being terminated based solely on a positive cannabis drug test. However, CREAMMA does not expressly provide a private cause of action for remedying employment discrimination against cannabis users. A recent decision by the Third Circuit in Zanetich v. Wal-Mart Stores E., Inc., 2024 U.S. App. LEXIS 31051 (3d Cir. Dec. 9, 2024) makes clear that an employer’s failure to comply with CREAMMA cannot be the basis of an employment law claim.
In Zanetich, the Third Circuit held that an employee does not have the right to sue his/her employer for damages under CREAMMA for rescinding a job offer after testing positive for cannabis. The plaintiff in Zanetich was offered an asset protection position at a Walmart facility on the condition that he take and pass a drug test. Id. at *8. At the time, Walmart had a policy in place that specifically stated all job applicants and employees were ineligible for employment upon testing positive for any drugs, including cannabis. Id. When Zanetich tested positive for cannabis, Walmart rescinded the job offer. Id. Shortly after his job offer was rescinded, Zanetich filed a two-count putative class action complaint, alleging one count for violations of CREAMMA and one count for violations of New Jersey public policy. Walmart moved to dismiss both counts for failure to state a claim, which was granted by the District Court of New Jersey. Zanetich then appealed to the Third Circuit.
The Third Circuit found that, to create a private cause of action, CREAMMA must provide not only a private right but also a private remedy. Private remedies for statutory rights could be implied, but they cannot be presumed. The Third Circuit relied heavily on the United States Supreme Court case entitled Cort v. Ash, 422 U.S. 66 (1975) when rendering its decision. In Cort, the Supreme Court refused to presume that a private remedy should be implied for violations of federal criminal law. In doing so, the Supreme Court applied the following factors:
- Whether the plaintiff is “one of the class for whose special benefit the statute was enacted;”
- Whether there is “any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one;”
- Whether it is “consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff;” and
- Whether the cause of action has been “traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law.”
The New Jersey Supreme Court applied and modified the Cort test by limiting it to only the first three factors. In re State Comm’n of Investigation, 108 N.J. 35, 527 A.2d 851, 854-56 (1987). When applying these factors to CREAMMA, the Third Circuit determined none of the factors met that test, resulting in the Court affirming the District Court’s dismissal of Zanetich’s claims.
As for Zanetich’s second count alleging a public policy exception to the at-will employment under Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980), the Third Circuit found it is inapplicable. Under Pierce, employees may bring claims for wrongful termination when the termination resulted from the employee’s compliance with a clear mandate of New Jersey public policy. In its analysis, the Zanetich Court determined that the exception only protects employees, not job applicants. Therefore, Pierce does not encompass claims for failure to hire in violation of New Jersey public policy. Notably, the Supreme Court did not make any determinations as to whether an employee could bring a public policy claim under Pierce if they are terminated for testing positive for cannabis.
If you believe your employment has been wrongfully terminated, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. Mashel Law, located in Morganville, New Jersey, is dedicated to protecting the rights of employees.