District Court Confirms That NJ’s Cannabis Law Does Not Provide Individuals with Private Right of Action
Jun 20, 2023 | Written by: | Share
In a recent decision, Zanetich v. Wal-Mart Stores East, Inc d/b/a Walmart, Inc., et al. (May 24, 2023), the New Jersey District Court confirmed that New Jersey’s cannabis law does not provide individuals with a private right of action to file suit for an alleged violation of the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) N.J.S.A. 24:6I-52.
CREAMMA provides for the legal sale and use of cannabis and among other things, prohibits employers from taking “adverse action” against employees or prospective employees “because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items” or because of a positive drug test alone.
However, in a case of first impression, the United States District Court of the District of New Jersey (USDNJ) concluded that there does not exist an express or implied cause of action under CREAMMA. The ruling came after the plaintiff, Zanetich, brought his lawsuit on behalf of himself, and others similarly situated, after a job offer to work for Walmart was rescinded because Zanetich tested positive for marijuana. Zanetich’s claims included one for a violation of CREAMMA and a common law claim for failure to hire and/or termination in violation of New Jersey public policy.
Because the language of CREAMMA is silent as to whether it permits a person the right to sue for violations of the statute, the Court was called upon to decide whether CREAMMA created an implied cause of action. To answer this question, the Court applied the three-part test established by the United States Supreme Court in Cort v. Ash, 422 U.S. 66 (1975). The Court held that Zanetich established the first Cort factor because he is a member of the class for whose special benefit the CREAMMA statute was enacted. The Court, however, went on to conclude that Zanetich failed to establish the other two Cort factors; that the New Jersey Legislature intended the statute to provide for a private cause of action, and the legislative scheme embodied within CREAMMA supported an inference that an implied private cause of action existed under the statute. The Court found it to be significant that the Legislature empowered the Cannabis Regulatory Commission (CRC) to regulate and prosecute all violations of CREAMMA.
As to the existence of a common law cause of action, the Court likewise dismissed that claim because Zanetich was never actually employed by Walmart and therefore lacked standing as an “employee.” The Court further noted that federal and New Jersey Courts have repeatedly found that there is no cause of action under common law for a failure to hire.
The Court noted the seemingly unfair effect that the outcome of the case had on the plaintiff and noted that the decision left Zanetich without a remedy and “essentially renders the language of the employment provision meaningless.” The Court then welcomed the legislature to amend the statute to clearly evidence an intent to provide for a private cause of action, including “how the provision can be enforced, by whom, and what remedies are available as it has previously done in many other employment related statutes.” We imagine this will not be the last word on CREAMMA.
The employment attorneys at Gebhardt & Kiefer regularly provide guidance on cannabis in the workplace and proper testing and policy protocols. If you are an employer with questions about your policies or obligations to employees, please contact us.
Leslie A. Parikh, Esq., is a partner with Gebhardt & Kiefer, PC. She practices primarily in the areas of employment law, civil rights litigation, municipal law, insurance defense, and the representation of public entities in both State and Federal Court. Contact Ms. Parikh at 908-735-5161 or via email.
If you have a suggestion for a future blog topic, please feel free to submit it via the Contact Us form.
Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.