In a case of first impression, a split judicial panel of the Third Circuit Court of Appeals concluded that New Jersey job seekers do not have the right to sue employers who rescind job offers to applicants testing positive for cannabis, despite state legislation that bars employers from doing just that.
Background
The case was brought under New Jersey’s 2021 Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) that legalized recreational marijuana use. In pertinent part, CREAMMA expressly prohibits employers from refusing to hire applicants because of their use or non-use of marijuana. Less than a year after CREAMMA’s passage, Erik Zanetich was offered a job at Walmart, subject to passing a drug test. Walmart’s policy mandated that applicants were ineligible for employment if they tested positive for drugs. When Zanetich tested positive for cannabis, his job offer was rescinded. Zanetich filed a class action suit, arguing that Walmart’s retraction of his job offer was in violation of the protections accorded to marijuana users under CREAMMA.
In the proceedings below, the New Jersey District Court dismissed Zanetich’s claim, finding that while CREAMMA clearly prohibits employment discrimination against marijuana users, the law did not create an express or implied private right of action for job applicants denied employment in violation of that statutory prohibition. The court further rejected Zanetich’s alternate argument that Walmart’s actions violated New Jersey’s public policy that accords job protections for cannabis users, as reflected in CREAMMA. Zanetich appealed the dismissal to the Third Circuit Court of Appeals, who similarly rejected Zanetich’s legal claims.
The Split Decision
In a 2-1 decision, the majority agreed that the legislature’s failure to spell out a legal remedy for victims of discriminatory practices in violation of CREAMMA was “a deliberate choice not to provide a remedy rather than an oversight of an intended remedy.” While recognizing that private remedies for violations of statutory rights can be implied in a statute, they are not to be presumed by the courts. The court pointed to various factors that weighed against an implied private remedy under CREAMMA, including the fact that the New Jersey Legislature has repeatedly amended the New Jersey Law Against Discrimination to extend private rights of action to various protected classes, yet “at no time – not even after the 2020 amendments to its Constitution – has New Jersey created an express cause of action for employment discrimination based on cannabis use.” Had the Legislature intended to create a private right of action for violations, it likely would have done so expressly, as it has done in many other contexts, instead of “leav[ing] the matter to the happenstance of future judicial construction.”
Interestingly, the court noted that another provision of CREAMMA shields employees from termination or other adverse employment actions based solely on a positive test for cannabis. However, the court observed that the statutory text of that provision extended these protections to current employees, not to job applicants like Zanetich. However, the court fell short stating that it would have recognized a private right of action had Zanetich been an employee who was terminated for a positive marijuana test, and that issue remains unsettled.
In her dissenting opinion, Judge Ariana Freeman wrote “I predict that the New Jersey Supreme Court would discern an implied cause of action for failure to hire in violation of CREAMMA.” Observing that this issue was likely to reoccur, she would certify the question of law to the New Jersey Supreme Court for a final resolution. The majority of Judges, Peter Phipps and Kent Jordon, disagreed and denied Zanetich’s request for certification.
What’s Next?
By no means is this the last word. Ultimately, the issue will be taken up by the New Jersey Supreme Court, who likely will recognize an implied right of action for individuals who are discriminated against by employers for their marijuana use. Alternatively, the Legislature could amend CREAMMA to expressly provide a legal remedy for violations. The landscape is far from settled and prudent employers will proceed with caution and consult with employment counsel before rejecting applicants or terminating employees testing positive for marijuana.