The New Jersey District Court has admonished the New Jersey Legislature for failing to include language allowing for a private cause of action under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act [“CREAMMA”]. 

 In Zanetich v. Wal-Mart Stores East, Inc., No. 1:22-cv-05387 (D.N.J. May 25, 2023), Plaintiff interviewed for a job in the Asset Protection Department.  Three days later, he was offered a job, conditioned on his passing a drug test.  Walmart had a Drug & Alcohol Policy that stated, “Any applicant or associate who tests positive for illegal drug use may be ineligible for employment,” and the policy specifically included marijuana.  Thereafter, Walmart rescinded the job offer on the basis that the plaintiff tested positive for marijuana. Plaintiff sued under CREAMMA, asserting a failure to hire claim.  CREAMMA specifically states that an employer cannot refuse to hire or employ any person because that person uses cannabis.  It also allows an employer to require drug tests as part of pre-employment screening.  The District Court noted that although CREAMMA also expressly designates that the Cannabis Regulatory Commission [“CRC”] has the power to investigate and aid in the prosecution of violations relating to cannabis, that power does not create a right for an employee to sue in court.  Rather, the CRC’s powers include issuing subpoenas and compelling the production of documents and the attendance of witnesses.  The parties in Zanetich agreed that there was no explicit private cause of action set forth in the Act.  Thus, the issue the court addressed was whether there was an implicit, as opposed to a direct, private cause of action.

 Unfortunately for the employee, the court found there was no such implicit right, and emphasized that there was no evidence of any legislative intent to create such a right.  It also found no evidence that the Legislature intended for the CRC to handle all aspects of the enforcement of the Act.  The court realized that it was leaving the plaintiff without a remedy, and admonished the Legislature, stating that the court was confined to the dictates of the law, and that 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.”  It cautioned that the CREAMMA protections for adverse employment actions are illusory unless corrective action is taken by the Legislature, CRC and/or the New Jersey Supreme Court.  We will have to wait and see how long it takes to remedy this oversight, and it will be interesting to see which entity resolves the issue.