123 F.4th 128
3d Cir.2024Background
- In 2021, New Jersey enacted the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) to legalize and regulate adult marijuana use and included employment protections for cannabis users.
- CREAMMA prohibits employers from refusing to hire or taking adverse action against applicants or employees based solely on cannabis use; however, it does not expressly provide a private right of action for violations.
- Plaintiff Zanetich was offered a job at Walmart contingent on a drug test; his offer was rescinded after testing positive for cannabis.
- Zanetich filed a putative class action claiming: (1) CREAMMA impliedly provides a private cause of action for employment discrimination; and (2) rescinding a job offer on this basis violates New Jersey's public policy exception to at-will employment.
- The District Court dismissed both claims. Zanetich appealed, also seeking certification of the issues to the New Jersey Supreme Court.
- The Third Circuit (majority) affirmed dismissal, finding no implied private action under CREAMMA for job applicants and no relevant public policy exception; a dissent argued the opposite on the implied right of action and urged certification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does CREAMMA imply a private cause of action for job applicants denied employment for lawful cannabis use? | Zanetich: Statute protects applicants like him; lack of express remedy should not defeat right; legislative context supports implied right. | Walmart: No implied private right—statute lacks explicit remedy, alternative enforcement exists, and legislative silence is intentional. | No: CREAMMA does not specially benefit job applicants, lacks legislative intent for a private action, and a private cause would be inconsistent with the law's purposes. |
| Does the public policy exception to at-will employment in New Jersey prevent rescinding job offers based on cannabis use? | Zanetich: The exception should protect job applicants refused jobs for cannabis use, fitting the statute's remedial goals. | Walmart: Exception only covers current/former employees; courts have rejected extending it to applicants. | No: Exception applies only to employees, not applicants, and New Jersey courts have not indicated willingness to expand. |
| Should the issues be certified to the New Jersey Supreme Court? | Zanetich: Significant and unresolved issues of state law; certification appropriate. | Walmart: Not necessary; controlling law is clear and judicial economy disfavours certification. | No: Legal issues are not highly uncertain or of broad enough importance to warrant certification. |
| Was Zanetich entitled to amend his complaint after dismissal? | Zanetich: Should be allowed to attempt amendment, given civil rights at issue. | Walmart: Applies only to federal civil rights, not state law claims. | No: The rule allowing curative amendment does not apply outside federal civil rights claims. |
Key Cases Cited
- Alexander v. Sandoval, 532 U.S. 275 (No implied private right of action can be presumed without clear textual indication)
- Cort v. Ash, 422 U.S. 66 (Establishes factors to determine whether statute implies private right of action)
- R.J. Gaydos Ins. Agency, Inc. v. Nat’l Consumer Ins. Co., 773 A.2d 1132 (NJ Supreme Court's adoption of modified Cort test for implied private remedies)
- Pierce v. Ortho Pharmaceutical Corp., 417 A.2d 505 (Classic NJ case establishing the public policy exception to at-will employment)
- Jarrell v. Kaul, 123 A.3d 1022 (NJ Supreme Court applying the modified Cort test and declining to imply private remedy)
- Lally v. Copygraphics, 428 A.2d 1317 (Earlier NJ Supreme Court case implying a remedy for retaliatory firing prior to adoption of modified Cort test)