In a case of first impression, Judge O’Hearn of the United Stated District Court of the District of New Jersey (USDNJ) concluded that there is neither an express or implied cause of action under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“CREAMMA”), N.J.S.A. 24:6I-52. Judge O’Hearn likewise held that New Jersey common law does not recognize a cause of action based on an employer’s failure to hire.  These decisions resulted in a putative class action lawsuit entitled Zanetich v. Wal-Mart being dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a cause of action upon which relief could be granted.

Plaintiff Zanetich brought his lawsuit on behalf of himself, and others similarly situated, after a job offer to work for Walmart in its Asset Protection Department was rescinded after he failed a pre-employment drug test due to positive findings of marijuana.  Zanetich argued in opposition to Walmart’s Motion to Dismiss that even though CREAMMA did not expressly provide for a private right to sue for violations of the statute, an implied private cause of action existed, and further, that his common law cause of action was also cognizable as both a wrongful termination and failure to hire claim. Zanetich made these arguments premised in part on the fact that the language of CREAMMA states, “No employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions, or other privileges of employment because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items …”

In determining that CREAMMA did not create an implied cause of action for violations of the statute, Judge O’Hearn applied the three-part test established by the United States Supreme Court in Cort v. Ash, 422 U.S. 66 (1975).  This was required because the language of CREAMMA is silent as to whether it permits a person the right to sue for violations of the statute. Prior thereto, no court had considered whether CREAMMA creates an implied cause of action. After finding Zanetich had established the first Cort factor of being a member of the class for whose special benefit the CREAMMA statute was enacted, Judge O’Hearn went on to conclude that Zanetich had failed to establish the other two Cort factors, that is, he failed to establish that the New Jersey Legislature in passing CREAMMA intended the statute to provide for a private cause of action, and relatedly, failed to establish the legislative scheme embodied within CREAMMA supported an inference that an implied private cause of action existed under the statute. In making these findings Judge O’Hearn heavily weighed the fact that the State Legislature in drafting CREAMMA empowered the Cannabis Regulatory Commission (CRC) to regulate, investigate, and prosecute all violations of the statute.  Considering this wide encompassing role of the CRC and given the lack of any provision in CREAMMA as to how its employment provision can be enforced, by whom, and what remedies, if any, are available under the statute as written, “in and of itself, negates the argument that the Legislature intended for an individual to bring a private cause of action under CREAMMA.”

As to the existence of a common law cause of action under Pierce v. Ortho Pharmaceutical Corporation, commonly referred to as a Pierce claim, Judge O’Hearn found it fatal that Zanetich was never actually employed by Walmart because since he was never an employee of Walmart he could not ipso facto then assert a Pierce based wrongful discharge claim.  Judge O’Hearn noted that the USDNJ and New Jersey state courts have repeatedly found that there is no cause of action under common law for a failure to hire.

Judge O’Hearn ended her decision by recognizing that she was leaving, “Plaintiff without a remedy and essentially renders the language of the employment provision meaningless. Yet that is the outcome dictated by the law. It is not the function of the Court to re-write incomplete legislation or create remedies for a statutory violation where the Legislature did not.  *** If the Legislature intended for there to be a private cause of action [under CREAMMA], it should amend the statute to clearly evidence that intent, 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.” Our Legislature is urged to heed Judge O’Hearn’s words and to move quickly to amend CREAMMA to provide for a private cause of action for New Jersey workers who are not hired or who lose their jobs for the legal recreational use of marijuana.

If you or someone you know is the victim of discrimination or whistleblowing retaliation, 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 Marlboro, New Jersey, is dedicated to protecting the rights of employees.

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