In a win for businesses, a federal appeals court this week ruled that a 2021 New Jersey law that prohibits employers from discriminating against cannabis users was meant to be enforced by the state, not through private lawsuits brought by individuals.
The 3rd U.S. Circuit Court of Appeals in Philadelphia tossed out a proposed class action lawsuit filed by a South Jersey man, Erick Zanetich, who sued Walmart in 2022 after the company rescinded its offer of employment to work as a security guard when he failed the company’s pre-employment drug test for marijuana.
The court’s split 2-1 decision issued Monday dismissed noted that the Legislature did not expressly grant workers the right to sue employers for cannabis-related discrimination under the Cannabis Regulatory Enforcement Assistance and Marketplace Modernization Act (CREAMMA), as it has done previously for other types of employment discrimination.
The court said the state’s Cannabis Regulatory Commission, which issued a guidance document for employers in 2022, was responsible for enforcing the law.
Although New Jersey law covering other types of employment discrimination based on factors such as race, religion, gender, marital status, sexual orientation, physical disability, etc., specifically grants employees a private right of action to sue over violations, CREAMMA is silent on that point, the court said.
“The far stronger inference from the legislative silence regarding a private remedy for cannabis-related employment discrimination is that the Legislature did not intend to provide one,” wrote Circuit Judge Peter Phipps for the majority.
Moreover, the lack of employment-related enforcement action taken thus far by the state Cannabis Regulatory Commission has no bearing on the commission’s authority over the matter, the court said.
“Enforcement decisions are discretionary … and the absence of enforcement activity against employers may reflect the Commission’s relative priorities instead of a lack of legal authority to initiate such proceedings,” the court said. “Thus, the Commission’s post-enactment enforcement inaction is not particularly revealing of the pre-enactment intention of the New Jersey Legislature.”
New Jersey is one of 24 states where recreational marijuana is legal. New Jersey’s law bars employers from rejecting job applicants or firing workers for using cannabis on their own time, though it does allow for workers to be fired if they are impaired on the job.
Although Zanetich initially filed his lawsuit against Walmart in Gloucester County, the retailer successfully petitioned to have the case moved to federal court because the company is not headquartered in New Jersey.
Last year, U.S. District Judge Christine O’Hern in Camden ruled that New Jersey law did not give workers private right of action to sue employers for cannabis-related discrimination and that enforcement was up to the state Cannabis Regulatory Commission.
This week the split appellate ruling upheld O’Hern’s decision. Phipps was joined in the majority opinion by Circuit Judge Kent Jordan. Circuit Judge Arianna Freeman dissented in part, writing that the appellate panel should have referred the case back to the New Jersey Supreme Court to decide.
“Because New Jersey’s Supreme Court has not addressed this precise issue, we must predict how it would rule,” Freeman wrote. “At a minimum, I would certify this question of law to the New Jersey Supreme Court — the ‘most appropriate forum’ to weigh the public policy interests underlying CREAMMA’s employment protections.
“My examination of New Jersey authority leads me to predict that the New Jersey Supreme Court would recognize an implied private right of action for Zanetich to enforce CREAMMA’s employment protections,” Freeman wrote.
Cannabis Regulatory Enforcement Assistance and Marketplace Moderniziation Act, CREAMMA, drug testing, Employment Discriminiation, Walmart
In a win for businesses, a federal appeals court this week ruled that a 2021 New Jersey law that prohibits employers from discriminating against cannabis Read More
