Background
In November 2020, New Jersey voters approved legalization of recreational cannabis. The following February, the Legislature enacted CREAMMA (Cannabis Regulatory, Enforcement Assistance, and Market Modernization Act), which prohibits employers from refusing to hire or taking adverse employment action against individuals based on their lawful cannabis use or the presence of cannabinoid metabolites in drug tests.
Darlene Sanders applied for a customer service position with The Levari Group (operating as First Choice Freezer) in December 2022. After interviews, she received a conditional job offer. As part of standard hiring procedures, the company administered a drug test, which showed Sanders had used cannabis within the past 30 days—lawfully and recreationally. In January 2023, when Sanders inquired about her start date, the company offered her the option to retest at her own expense. Unable to afford the retest, Sanders declined. The company then rescinded the job offer.
Sanders sued alleging the rescission violated CREAMMA’s anti-discrimination protections. The trial court dismissed her claims, reasoning that employees lack a private right of action to sue employers; rather, the court suggested the Cannabis Regulatory Commission was the appropriate enforcement body. Sanders appealed, presenting the court with a matter of first impression.
The Court’s Holding
The Appellate Division reversed, holding that CREAMMA implicitly provides a private right of action allowing employees and prospective employees to sue employers directly for violations of the anti-discrimination provisions. Applying the three-factor Cort test for implied private rights of action, the court found: (1) Sanders is clearly part of the class CREAMMA was designed to protect—employees and prospective employees whose job prospects are affected by positive cannabis tests; (2) the statute contains “rights-creating language” (“shall not form the basis” for employment discrimination), and the Legislature conspicuously chose not to expressly preclude private rights of action, unlike a related statute enacted the same day; and (3) a private right of action is consistent with CREAMMA’s remedial purpose of mitigating collateral consequences of cannabis use on employment and civil participation.
The court stressed that CREAMMA’s preamble contains a “litany of findings” demonstrating clear legislative intent to construe the statute robustly. While the Cannabis Regulatory Commission has regulatory authority, it lacks procedures to address individual complaints about employment discrimination. The court found it “unfortunate” that individuals could not readily seek relief through the CRC for non-licensing violations. The absence of an alternative administrative remedy, combined with the statute’s rights-creating language, supported recognition of a private right of action.
The court reversed dismissals of Sanders’s CREAMMA, negligence, invasion of privacy, and breach of contract claims, remanding for further proceedings. However, it affirmed dismissal of her common law wrongful discharge claim under Pierce v. Ortho Pharmaceutical Corp., holding that CREAMMA itself provided the appropriate statutory basis for relief rather than common law causes of action.
Key Takeaways
- Employees and prospective employees can sue employers directly for violations of CREAMMA’s cannabis anti-discrimination provisions—establishing a new private right of action as a matter of first impression.
- Statutory silence on enforcement mechanisms, combined with rights-creating language and a clear remedial purpose, supports implying a private right of action in the employment discrimination context.
- The Legislature’s express exclusion of private rights of action in a related statute (N.J.S.A. 34:6B-21, the Opportunity to Compete Act) passed the same day reinforces that CREAMMA permits them.
- Employers may not condition employment offers on compliance with drug tests that detect lawful off-duty cannabis use unless required by federal law or federal funding restrictions.
Why It Matters
This decision significantly strengthens employee protections under New Jersey’s cannabis legalization framework. CREAMMA was enacted as remedial legislation explicitly designed to mitigate lasting harms of cannabis prohibition—the statute itself recognizes these harms include devastation to employment prospects, housing access, and civic participation. By recognizing a private right of action, the court ensures affected individuals have direct recourse in court rather than dependence on an administrative agency lacking clear complaint procedures.
For employers, the decision mandates careful review of drug testing policies. Rescinding job offers based on positive tests for lawful off-duty cannabis use—even when the use occurred weeks before testing—now exposes employers to direct liability. The ruling aligns New Jersey with a broader judicial trend of recognizing implied private rights of action in employment discrimination statutes, particularly those addressing protected classes or remedial purposes. The decision also reflects judicial skepticism toward construing silence as precluding private remedies without express legislative language to that effect.