Erick Zanetich v. WalMart Stores East IncErick Zanetich v. WalMart Stores East Inc
Justin L. Swidler [ARGUED]
SWARTZ SWIDLER
9 Tanner Street
Suite 101
Haddonfield, NJ 08033
Counsel for Appellant
Misha Tseytlin [ARGUED]
TROUTMAN PEPPER
227 W Monroe Street
Suite 3900
Chicago, IL 60606
Counsel for Appellees
OPINION OF THE COURT
PHIPPS, Circuit Judge.
In 2021, as part of its efforts to legalize and regulate marijuana use “in a similar fashion to the regulation of alcohol for adults,” New Jersey enacted the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act — referred to herein as “CREAMMA.” N.J. Pub. L. 2021, ch. 16 (amending
In this appeal, the job applicant challenges that ruling and alternatively seeks certification to the New Jersey Supreme Court of the state-law issues underlying both claims. On de novo review of the District Court’s decision, we will affirm the judgment of the District Court, and exercising our discretion, we will not certify either question.
I. STATUTORY BACKGROUND
At least as far back as 1933, New Jersey criminalized the use and possession of cannabis. See N.J. Pub. L. No. ch. 186, arts. I–III (1933). That prohibition began to be relaxed in 2010 with the passage of legislation that exempted the medical use of cannabis from criminal liability under New Jersey law. See N.J. Pub. L. No. 2009, ch. 307 (codified at
Within a month of the effective date of that amendment, on February 22, 2021, New Jersey enacted CREAMMA, which provides a statutory grounding for the regulation of cannabis in the state. See N.J. Pub. L. No. 2021, ch. 16. The New Jersey Legislature announced and codified three broad purposes of CREAMMA:
- to adopt a new approach to our marijuana policies by controlling and legalizing a form of marijuana, to be referred to as cannabis, in a similar fashion to the regulation of alcohol for adults . . .
- [to] prevent the sale or distribution of cannabis to persons under 21 years of age . . . [and]
- to eliminate the problems caused by the unregulated manufacturing, distribution, and use of illegal marijuana within New Jersey[.]
The New Jersey Legislature also made a dozen factual findings in support of CREAMMA. See
A marijuana arrest in New Jersey can have a debilitating impact on a person’s future, including consequences for one’s job prospects, housing access, financial health, familial integrity, immigration status, and educational opportunities . . . .
In furtherance of those purposes and findings, CREAMMA delegated significant authority to the Cannabis Regulatory Commission. It conferred jurisdiction on the Commission over “any person who buys, sells, cultivates, produces, manufactures, transports, or delivers any cannabis or cannabis items within this State.”
Also, as part of its overall approach to cannabis regulation, CREAMMA prohibited two forms of employment discrimination. First, it outlawed employment discrimination based on a person’s use or non-use of cannabis:
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 . . . .
[A]n employee shall not be subject to any adverse action by an employer solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid from engaging in conduct permitted under [CREAMMA].
CREAMMA also set express bounds for those employment protections. They do not prevent employers from “maintain[ing] a drug- and alcohol-free workplace.”
The Cannabis Regulatory Commission has exercised some, but seemingly not the full extent, of its authority with respect to CREAMMA’s employment protections. It has promulgated regulations4 and issued guidance documents.5 One of those guidance documents, issued in September 2022 to “all employers,” explained that a positive drug test when combined with evidence of impairment may justify an adverse employment action:
A scientifically reliable objective testing method that indicates the presence of cannabinoid metabolites in the employee’s bodily fluid alone is insufficient to support an adverse employment action. However, such a test combined with evidence-based documentation of physical signs or other evidence of impairment during an employee’s prescribed work hours may be sufficient to support an adverse employment action.
N.J. Cannabis Regul. Comm’n, Guidance on “Workplace Impairment” 1 (2022) [https://perma.cc/25WT-DZWP]. The Commission, however, has not taken any formal enforcement action against employers who violate CREAMMA’s employment protections.
II. FACTUAL BACKGROUND (AS ALLEGED IN THE COMPLAINT)
In January 2022, less than a year after the enactment of CREAMMA, New Jersey citizen Erick Zanetich applied for an asset protection position at a Walmart facility in Swedesboro, New Jersey. A week later, he was offered a job there – subject to the condition that he take and pass a drug test. That condition reflected a corporate policy – in effect even after CREAMMA – under which all job applicants and employees were ineligible for future employment upon testing positive for drugs. Zanetich tested positive for cannabis, and his job offer was rescinded.
Prompted by the rescission of his job offer, Zanetich filed a two-count putative class-action complaint in the Superior Court of Gloucester County against Walmart and one of its affiliated corporations. For relief, Zanetich sought back pay, front pay, punitive damages, and an injunction ordering rescission of the corporate drug policy among other remedies, but, as allowed by New Jersey law,6 his complaint did not demand a sum certain. Walmart and the affiliated corporation – neither of which has citizenship in New Jersey7 – removed the case to federal court, invoking the District Court’s diversity jurisdiction on the grounds that Zanetich was not a citizen of the same states as Walmart and the amount in controversy exceeded $75,000. See
Although both of Zanetich’s claims rest on the same underlying fact – the rescission of his job offer based on his positive marijuana test – they rely on different legal theories. Count I depends on the legal conclusion that CREAMMA contains an implied remedy for violations of its pre-employment protections. Count II hinges on the applicability of New Jersey’s public policy employment exception to the rescission of a job offer based on a positive drug test for cannabis.
Walmart moved to dismiss both counts for a failure to state a claim upon which relief can be granted by arguing that neither legal theory was viable. See
Through a timely notice of appeal of that final decision, Zanetich invoked this Court’s appellate jurisdiction, see
IV. DISCUSSION
A
A. Count I Was Properly Dismissed Because CREAMMA Does Not Imply a Remedy for Job Applicants Who Fail Drug Tests for Cannabis.
To create a private cause of action, a law must provide not only a private right but also a private remedy. See Alexander v. Sandoval, 532 U.S. 275, 286–87 (2001); see also Gonzaga Univ. v. Doe, 536 U.S. 273, 290 (2002) (declining to infer a private cause of action from a statute that did not contain “rights-creating language“). The dividing line between those two components of a private cause of action has not always been well defined. At the beginning of the Republic, rights were understood to necessarily imply corresponding remedies under the “general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (quoting 3 William Blackstone, Commentaries *23); see also Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 24 (1981) (Stevens, J., concurring in judgment) (“Since the earliest days of the common law, it has been the business of courts to fashion remedies for wrongs.“). Under that view, it would be “a monstrous absurdity in a well organized goverment [sic], [if] there should be no remedy, although a clear and undeniable right should be shown to exist.” Kendall v. United States ex rel. Stokes, 37 U.S. 524, 624 (1838). Thus, when a violation of the statutory right caused an injury to a member of the class “for whose especial benefit the statute was enacted, the right to recover the damages from the party in default [was] implied.” Tex. & Pac. Ry. Co. v. Rigsby, 241 U.S. 33, 39 (1916). This view prevailed even into the mid-twentieth century, extending beyond implying a damages remedy to allow an inference of “any available remedy” from a private statutory right. Bell v. Hood, 327 U.S. 678, 684 (1946); see also J. I. Case Co. v. Borak, 377 U.S. 426, 433 (1964) (“It is for the federal courts ‘to adjust their remedies so as to grant the necessary relief’ where federally secured rights are invaded.” (quoting Bell, 327 U.S. at 684)).
Even so, private remedies for statutory rights could still be implied – they just could no longer be presumed. That new rule came about in Cort v. Ash, 422 U.S. 66 (1975), a case originating from this Circuit. There, the Supreme Court – persuaded by the dissenting opinion of Judge Aldisert9 – refused to presume that a private remedy should be implied for violations of federal criminal law.
- whether the plaintiff is “one of the class for whose especial benefit the statute was enacted“;
- whether there is “any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one“;
- whether it is “consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff“; and
- whether the cause of action has been “traditionally relegated to state law, in an area basically the
concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law.”
The Cort test was not particularly long-lived at the federal level. As early as 1988, one Justice believed that it had been effectively overruled. See Thompson v. Thompson, 484 U.S. 174, 189 (1988) (Scalia, J., concurring in judgment). And in 2001, the Supreme Court more formally narrowed the inquiry for implying a private remedy to an analysis of statutory text and structure. See Sandoval, 532 U.S. at 288. It reaffirmed that text-and-structure approach a year later. See Gonzaga, 536 U.S. at 286. And by 2007, this Court had observed that “[a]lthough Cort has never been formally overruled, subsequent decisions have altered it virtually beyond recognition.” Wisniewski v. Rodale, Inc., 510 F.3d 294, 299 (3d Cir. 2007).
Nevertheless, while the Cort test was in vogue, the New Jersey Supreme Court addressed a question similar to the one presented in Cort: whether a private remedy could be implied from a penal law. See In re State Comm’n of Investigation, 527 A.2d 851, 852–54 (N.J. 1987). To resolve that issue, the New Jersey Supreme Court used the Cort test as a guide, and it adopted a modified version of that test for implying a remedy from a state statutory right.
Despite these meaningful jurisprudential differences, a federal court sitting in diversity is obligated to apply state substantive law, as determined by the choice-of-law rules of the forum state. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 494 (1941) (holding that “in diversity cases the federal courts must follow conflict of laws rules prevailing in the states in which they sit“); SodexoMAGIC, LLC v. Drexel Univ., 24 F.4th 183, 204 (3d Cir. 2022). And with New Jersey as the forum state, there is no dispute that its choice-of-law rules would require the application of New Jersey substantive law – as opposed to federal law or the substantive law of either Delaware or Arkansas, where Walmart has citizenship.11
Under an assessment of New Jersey
Applying these principles to this case, Zanetich will have an actionable claim under his first count if, under the modified Cort test, CREAMMA implies a private remedy.
1. The First Cort Factor: Conferral of a Special Benefit on a Particular Class
To satisfy the first Cort factor – conferral of a special benefit on a particular class – a statute must, by the “unmistakabl[e] focus” of its own text, benefit a “particular class . . . whose welfare [the legislature] intended to further.” California v. Sierra Club, 451 U.S. 287, 294 (1981); see also Am. Tel. & Tel. Co. v. M/V Cape Fear, 967 F.2d 864, 870 (3d Cir. 1992) (declining to imply a right of action because “the statute [did] not clearly and exclusively articulate a right in that particular class of plaintiff“). A statute that functions as a “general regulatory scheme” for the “benefit [of] the public at large” does not confer a special benefit on a particular class. Sierra Club, 451 U.S. at 297–98; see also Cort, 422 U.S. at 79–80 (holding that “a bare criminal statute[] with absolutely no indication that civil enforcement of any kind was available to anyone” did not confer a special benefit on any particular class); In re State Comm’n of Investigation, 527 A.2d at 853–56 (holding that a statute criminalizing breaches of confidentiality obligations in law enforcement investigations did not confer a special benefit upon the subjects of the investigation whose information was disclosed in violation of the confidentiality provisions). Likewise, a statute that provides a benefit – even one of great value – to some incidental, unidentified class does not meet the special-benefit standard. See Sierra Club, 451 U.S. at 294 (explaining that interpreting “especial beneficiary” to mean “any person who would be ‘especially harmed’ by” a violation of the act would “make[] this factor meaningless“); Cort, 422 U.S. at 80 (rejecting an implied remedy when the protection of a particular class was a “subsidiary purpose” of the legislation). And even a statute that benefits a particular class does not confer a special benefit when the benefit to that class is subordinate to the one provided to another readily defined class. See Rauch v. United Instruments, Inc., 548 F.2d 452, 458–59 (3d Cir. 1976) (refusing to imply a statutory remedy for aircraft owners because the “principal beneficiaries” of the statute
Applied here, Zanetich must demonstrate that CREAMMA specially benefits job applicants like himself who test positive for cannabis use. But CREAMMA does not do that.
CREAMMA’s first employment protection prohibits adverse employment actions because a person “does or does not smoke, vape, aerosolize or otherwise use cannabis items.”
CREAMMA’s second protection shields employees from adverse employment actions based solely on a positive drug test for cannabis. See
For these reasons, CREAMMA does not confer a special benefit on job applicants who test positive for cannabis, and the first, most important Cort factor is not met here.
2. The Second Cort Factor: Legislative Intent to Provide a Remedy
The second Cort factor examines the explicit or implicit legislative intent to provide a remedy. See Cort, 422 U.S. at 78. The Cort test was formulated at a time when legislative history was among the touchstones of reading statutes. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 373–74 (2012). And in applying its second factor, the Supreme Court considered primarily legislative history. See, e.g., Merrill Lynch, 456 U.S. at 377; Cannon, 441 U.S. at 694. Here, however, Zanetich identifies no legislative history for CREAMMA that indicates an intention to provide a private remedy for a prospective employer’s failure to hire a job applicant based on a positive drug test for cannabis. At most, the legislative history states that “an employer would not be permitted to refuse to hire or employ a person, or discharge or take any adverse action against an employee because that person or employee does or does not use cannabis items.” Appropriations
The second Cort factor also allows for consideration of implied legislative intent. See Cort, 422 U.S. at 78. Zanetich contends that the lack of an alternative mechanism for enforcement of CREAMMA’s employment protections implies a legislative intent to provide remedy for those rights. That argument fails on several levels.
Zanetich’s assertion overreads New Jersey precedent. It is a near certainty that New Jersey courts will not regard the second Cort factor as satisfied when there is an alternative enforcement mechanism. See, e.g., R.J. Gaydos, 773 A.2d at 1148. But the inverse is not equally true. Rather, the absence of an alternative enforcement mechanism does little to suggest a legislative intention to provide a private remedy. It could be that New Jersey simply did not intend to provide one. Applied here, where there already two spheres of silence with respect to a private remedy (the lack of a statutory remedial provision and the absence of express legislative history), the additional omission of an alternative enforcement mechanism for CREAMMA’s employment protections does little, if anything, to establish a legislative intent to create a private remedy. Rather, the lack of an express statutory remedial provision and the absence of legislative history are consistent with the conclusion that the New Jersey Legislature did not intend to create a private remedy.
Zanetich‘s argument loses additional traction because CREAMMA‘s employment protections may be enforced by alternative means. It is true that the provision Zanetich identifies, which grants the Cannabis Regulatory Commission jurisdiction over “any person who buys, sells, cultivates, produces, manufactures, transports, or delivers any cannabis or cannabis items within [New Jersey],”
Zanetich emphasizes the lack of employment-related enforcement actions by the Commission, but that does little to satisfy the second Cort factor. Enforcement decisions are discretionary, see Heckler v. Chaney, 470 U.S. 821, 838 (1985), 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. Thus, the Commission‘s post-enactment enforcement inaction is not particularly revealing of the pre-enactment intention of the New Jersey Legislature.
In addition, none of the factual findings codified in CREAMMA reveal a legislative intent to create a private remedy for cannabis-related
Finally, 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. Although New Jersey voters overwhelmingly supported amending the state Constitution to permit the legalization and regulation of marijuana, the Legislature in enacting CREAMMA did not provide a remedy for violating that statute‘s cannabis-related employment protections. Rather, CREAMMA stated expressly that its cannabis-related provisions should not be construed to “amend or affect in any way any State . . . law pertaining to employment matters.”
That conclusion is reinforced by the New Jersey Legislature‘s comparative responsiveness in enacting safeguards against other forms of employment discrimination. For instance, as originally enacted in 1945, New Jersey‘s Law Against Discrimination prohibited employment discrimination on the basis of “race, creed, color, and national origin or ancestry” and provided an express private cause of action for violations of those protections. N.J. Pub. L. No. 1945, ch. 169. Since then, New Jersey has amended the statute nine times to add fourteen protected classes. See N.J. Pub. L. No. 1962, ch. 37 (liability for military service); N.J. Pub. L. No. 1970, ch. 80 (marital status or sex); N.J. Pub. L. No. 1972, ch. 114 (physical disability); N.J. Pub. L. No. 1977, ch. 96 (nationality); N.J. Pub. L. No. 1981, ch. 185 (blood type and hereditary cellular traits); N.J. Pub. L. No. 1992, ch. 146 (affectional or sexual orientation and familial status); N.J. Pub. L. No. 1996, ch. 126 (genetic information); N.J. Pub. L. No. 2006, ch. 100 (gender identity or expression); N.J. Pub. L. No. 2013, ch. 220 (pregnancy). New Jersey separately created causes of action for other forms of employment discrimination, including discrimination based on tobacco use. See
In sum, the second Cort factor is not satisfied here: there is no express statement of a legislative intention to provide a private remedy for cannabis-related employment discrimination, and the inferences from the legislative silence weigh strongly against implying such an intention.
3. The Third Cort Factor: Advancing the Principal Purposes of CREAMMA
The third Cort factor examines whether implying a private cause of action would further “the underlying purpose of the legislative scheme.” Cannon, 441 U.S. at 703; see also Cort, 422 U.S. at 84 (examining whether the requested remedy would advance “the primary congressional goal“). Here, the New Jersey Legislature memorialized the three underlying purposes of CREAMMA in statutory text. See
The first underlying purpose of CREAMMA was to regulate cannabis “in a similar fashion to the regulation of alcohol for adults.”
The second stated purpose for CREAMMA was to “prevent the sale or distribution of cannabis to persons under 21 years of age.”
The third principal purpose also counsels against recognizing a private remedy for employment related cannabis discrimination. As codified, that purpose was “to eliminate the problems caused by the unregulated manufacturing, distribution, and use of illegal marijuana within New Jersey.”
In sum, the third Cort factor provides no basis for inferring a private remedy for CREAMMA‘s cannabis-related employment protections.
4. Balancing the Cort Factors
Ordinarily, once the Cort factors have been assessed individually, they are weighed against each other to ascertain whether a private remedy can be implied from a private statutory right. See R.J. Gaydos, 773 A.2d at 1143 (instructing courts to weigh Cort factors). But such balancing is not necessary here because each of the Cort factors counsels against implying a private remedy: (i) CREAMMA does not specially benefit job applicants who fail cannabis drug tests; (ii) there was not a legislative intent to imply a remedy for job applicants who fail cannabis drug
As a final effort to validate his first count, Zanetich argues that regardless of the Cort test, New Jersey courts readily imply remedies for employment statutes. His argument rests on three cases, but those provide little help. The only case decided by the New Jersey Supreme Court, Lally v. Copygraphics, 428 A.2d 1317 (N.J. 1981) (per curiam), recognized a common-law cause of action for a “retaliatory firing attributable to the filing of a workers’ compensation claim,”
The same can be said of Zanetich‘s reliance on Peper v. Princeton University Board of Trustees, 376 A.2d 535 (N.J. Super. Ct. App. Div. 1977), rev‘d, 389 A.2d 465 (N.J. 1978). In that case, which was reversed on other grounds, the Appellate Division of the Superior Court of New Jersey relied on an unequivocal statutory mandate proscribing sex-based employment discrimination to allow a claim to proceed in court. Id. at 539–40. But Peper has no persuasive force because it too precedes New Jersey‘s adoption of the modified Cort test.
The final case that Zanetich invokes, Winslow v. Corporate Express, Inc., 834 A.2d 1037 (N.J. Super. Ct. App. Div. 2003), is also distinguishable. The court in Winslow concluded that a private cause of action could be implied for an employee and against the employer for failure to provide updated notice of the method for calculating the employee‘s commission. Id. at 1042–43. But beyond citations to Lally and Peper, the only authority that the court invoked for that proposition, Mulford v. Computer Leasing, Inc., 759 A.2d 887 (N.J. Super. Ct. Law Div. 1999), relied on two Cort factors – special benefit and statutory purpose – albeit without attribution to Cort, id. at 891. Thus, Mulford, and by extension Winslow, are best understood as implicit applications of the modified Cort test, as opposed to separate rules for an implied remedy in employment disputes. And if doubts remained about New Jersey‘s dedication to Cort, they should have evaporated upon the New Jersey Supreme Court‘s subsequent reliance on the modified Cort test. See Jarrell, 123 A.3d at 1029; R.J. Gaydos, 773 A.2d at 1143.
B. New Jersey‘s public policy exception to at-will employment does not apply here.
Zanetich bases his second count on New Jersey‘s common-law public policy exception to at-will employment, first recognized in Pierce v. Ortho Pharmaceutical Corp., 417 A.2d 505, 512 (N.J. 1980). For the reasons below, that exception protects only employees – not job applicants – and thus it does not encompass claims for failure to hire in violation of public policy.
The New Jersey Supreme Court decided Pierce against the backdrop of its common-law doctrine of at-will employment. Under that doctrine, “in the absence of a contract, an employee may be fired for any reason, be it good cause, no cause, or even morally-wrong cause.” D‘Agostino v. Johnson & Johnson, Inc., 628 A.2d 305, 311 (N.J. 1993). The plaintiff in Pierce was an at-will employee who, as a medical doctor subject to the Hippocratic Oath, expressed concerns about her employer‘s work on the development of a new drug because one of the ingredients, saccharin, was controversial. See Pierce, 417 A.2d at 507–08. While her constructive discharge would have been permissible under the at-will employment doctrine, the doctor sought an exception to permit a claim of termination in violation of public policy. See id. at 508; see also Tartaglia v. UBS PaineWebber Inc., 961 A.2d 1167, 1180 (N.J. 2008) (explaining that the claim in Pierce was “in the nature of constructive discharge“).
In considering that modification to its common law, the New Jersey Supreme Court acknowledged that employees, especially those subject to ethical or professional codes of conduct, may be duty-bound by those codes to refrain from performing certain tasks. Pierce, 417 A.2d at 512. It then weighed the employers’ interests in “knowing they can run their businesses as they see fit as long as their conduct is consistent with public policy” against the employees’ interest in “knowing they will not be discharged for exercising their legal rights” and the public‘s interests in “employment stability” and in “discouraging frivolous lawsuits by dissatisfied employees.” Id. at 511. After balancing those interests, the New Jersey Supreme Court created an exception to its at-will employment doctrine to permit at-will employees to bring claims in contract and tort for wrongful termination when the termination resulted from the employee‘s compliance with an expressly stated “clear mandate of public policy.” Id. at 512; cf. id. (emphasizing that the exception does not extend to an employee‘s refusal to perform work based on the employee‘s “personal morals“). In ultimately resolving the dispute, however, the New Jersey Supreme Court determined that the terminated doctor did not qualify for the exception because “the Hippocratic Oath does not contain a clear mandate of public policy that prevented [her] from continuing her research on [the new drug].” Id. at 514.
Over time, New Jersey courts have recognized other violations of public policy that suffice for Pierce claims. See Mehlman v. Mobil Oil Corp., 707 A.2d 1000, 1008–10 (N.J. 1998) (collecting cases); see also Ballinger v. Del. River Port Auth., 800 A.2d 97, 109–10 (N.J. 2002). But each of those instances has involved claims for wrongful termination brought by former employees, not failure-to-hire
Finally, a federal court‘s prediction of state law also requires a sensitivity “to the doctrinal trends of the state . . . and the policies which inform[ed] the prior adjudication[] by the state courts.” Zamboni v. Stamler, 847 F.2d 73, 81 (3d Cir. 1988) (alterations in original) (quoting Becker v. Interstate Props., 569 F.2d 1203, 1206 (3d Cir. 1977)). Even so, there is no realistic likelihood that the New Jersey Supreme Court would expand Pierce to permit failure-to-hire claims by prospective employees. Any expansion of Pierce to cover prospective employees would require a rebalancing of the relevant interests. See MacDougall v. Weichert, 677 A.2d 162, 167 (N.J. 1996) (emphasizing that the Pierce exception was recognized “only after balancing the interests of the employee, the employer, and the public“); Hennessey v. Coastal Eagle Point Oil Co., 609 A.2d 11, 20 (N.J. 1992) (“A ‘clear mandate of public policy’ must be one that on balance is beneficial to the public.“). Under such a rebalancing, at least one of the interests that favored recognition of the Pierce exception – the public‘s interest in employment stability – would not be present because preventing firings promotes employment stability while preventing the rescission of job offers does not. In addition, on two occasions, New Jersey courts have considered and rejected extending Pierce to failure-to-hire claims. See Sabatino v. Saint Aloysius Par., 672 A.2d 217, 240 (N.J. Super. Ct. App. Div. 1996) (holding that the Pierce exception did not extend to failure-to-hire claims brought by a prospective employee); see also Lerner v. City of Jersey City, 2019 WL 1468735, at *4 (N.J. Super. Ct. Apr. 2, 2019) (“[F]ailure to hire is not a cause of action that is recognized under Pierce.” (citing Sabatino, 672 A.2d at 240)). On another occasion, the New Jersey Supreme Court has declined to extend Pierce claims to independent contractors for the same reason: they lack the same interest in employment stability as current employees. See MacDougall, 677 A.2d at 166 (“[Pierce] is designed to protect employees . . . . It does not protect independent contractors[.]“).
For further perspective, federal courts have characterized the Pierce exception as covering claims brought by employees or former employees – not job applicants. See Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 149 (3d Cir. 2004) (“The Pierce doctrine is about wrongful discharge.“); Lawrence v. Nat‘l Westminster Bank of N.J., 98 F.3d 61, 73 (3d Cir. 1996) (“[T]he paradigmatic dismissal giving rise to a public policy cause of action is the termination of an employee in retaliation for the employee‘s refusal to act contrary to public policy.“); cf. Zamboni, 847 F.2d at 82 (acknowledging that the Pierce doctrine may apply to claims by employees wrongfully demoted or suspended). And New Jersey courts have favorably cited those cases for their interpretation of Pierce. See, e.g., Mehlman, 707 A.2d at 1009 (citing Zamboni, 874 F.2d at 83); see also Cluney v. Mon-Oc Fed. Credit Union, 2006 WL 2128985, at *18 (N.J. Super. Ct. App. Div. 2006) (citing Conoshenti, 364 F.3d at 148–50).
C. Zanetich‘s Remaining Challenges Lack Merit.
Zanetich raises two additional arguments. He contends that the District Court, upon dismissing his complaint, should have allowed him to make curative amendments. He also seeks certification of the two dispositive issues to the New Jersey Supreme Court. Neither of those arguments succeeds.
1. The District Court Was Not Required to Allow a Curative Amendment.
Zanetich asserts that because this is a civil rights case, the District Court was required to dismiss his complaint without prejudice and allow an opportunity for curative amendment. But this Court‘s willingness to permit an opportunity for curative amendment is limited to cases involving federally recognized civil rights. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251, 253 (3d Cir. 2007); Dist. Council 47, Am. Fed‘n of State, Cnty. & Mun. Emps. v. Bradley, 795 F.2d 310, 316 (3d Cir. 1986); but cf. Iqbal, 556 U.S. at 687 (not requiring an opportunity to amend in a dismissed federal civil rights case); Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163, 168–69 (1993) (ruling that federal courts could not impose a heightened pleading standard in conflict with the
2. This Case Does Not Merit Certification to the New Jersey Supreme Court.
Zanetich also requests that the challenges to the viability of both of his claims be certified to the New Jersey Supreme Court. See 3d Cir. L.A.R. 110.1 (allowing certification of questions to state supreme courts that allow such certification);
One of those considerations is the likelihood of resolving an uncertain legal issue. See United States v. Defreitas, 29 F.4th 135, 141 (3d Cir. 2022). But here, neither question suffers from a high degree of uncertainty. For the first issue, New Jersey unequivocally uses a modified Cort test for ascertaining whether a state statute implies a private remedy, see R.J. Gaydos, 773 A.2d at 1143, and application of that test is straightforward. For the second issue, New Jersey state courts have not indicated any willingness to extend the Pierce exception to failure-to-hire claims by job applicants. See Sabatino, 672 A.2d at 240. Thus, if instead of being removed to federal court, this case would have remained in the New Jersey court system, it is unlikely that the reasoning for the decision or the outcome would be different.
Another common consideration in the certification decision is the importance of the question to be certified. See Defreitas, 29 F.4th at 142. The issues here, however, do not involve questions of state constitutional law, nor are they particularly transcendental. The first question is one of statutory construction localized to CREAMMA. The second issue seeks to allow a claim that has been the subject of very few, seemingly only one, reported New Jersey state-court decision in the past forty-plus years. See Sabatino, 672 A.2d at 240; cf. Lerner, 2019 WL 1468735, at *4. For these reasons, if this case would have remained in the state-court system, it is unlikely that the New Jersey Supreme Court would exercise discretionary jurisdiction over a petition to review either of the two issues on which certification is sought. See
Considerations of judicial economy also disfavor certification. See Defreitas, 29 F.4th at 142. The certification process takes additional time. And that time would not be well spent if the New Jersey Supreme Court declines certification. But even if the New Jersey Supreme Court were to accept certification, as helpful as its decision may be, it would likely rest on principles that have been known for decades: New Jersey uses a modified version of the Cort test, and New Jersey courts have not exhibited any willingness to extend the Pierce exception to include claims by job applicants. So, while authoritative statements of state law are always welcome, it is unnecessary to delay resolution of these issues in favor of the possibility of certification, which does not appear to be an efficient use of the time and other resources of the Justices of the New Jersey Supreme Court.
V. CONCLUSION
For the foregoing reasons, we will affirm the District Court‘s judgment.
FREEMAN, Circuit Judge, concurring in part and dissenting in part.
In 2020, New Jersey citizens voted to amend their State Constitution to legalize the recreational use of marijuana. The month after that constitutional amendment took effect, the New Jersey legislature enacted the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA). CREAMMA regulates marijuana manufacture, sales, personal use, and consumer protections in New Jersey. As relevant here, it prohibits employers from refusing to hire job applicants solely due to their personal use of marijuana. However, CREAMMA does not expressly permit a prospective employee who is not hired because of cannabis use to seek redress in court. In the absence of such an express cause of action, we must determine whether the statute contains an implied cause of action.
To do so, we apply New Jersey law. Because New Jersey‘s Supreme Court has not addressed this precise issue, we must predict how it would rule. Fortunately, several New Jersey authorities guide our path. Following that path, I predict that the New Jersey Supreme Court would discern an implied cause of action for failure to hire in violation of CREAMMA.
The District Court concluded otherwise, and the majority of this Court does the same (albeit for different reasons). I read the New Jersey authorities differently. At a minimum, I would certify this question of
Additionally, while I concur in the majority‘s conclusion that the District Court had diversity jurisdiction to hear this case, I reach that conclusion without including punitive damages in the amount in controversy. Walmart bears the burden of proving jurisdiction. And, contrary to the jurisdictional statements it made in its notice of removal, Walmart now asserts that punitive damages are unavailable to Zanetich as a matter of New Jersey law. Unsurprisingly, Zanetich disagrees. But we need not resolve that dispute because this matter satisfies the amount-in-controversy requirement even without punitive damages. For the benefit of future cases, I explain how I reach that conclusion where the amount in controversy is based on a prospective employee‘s relatively modest hourly wage.
I
When determining whether the amount in controversy exceeds $75,000, the Court “generally accept[s] a party‘s good faith allegation of the amount in controversy,” Columbia Gas Trans. Corp. v. Tarbuck, 62 F.3d 538, 541 (3d Cir. 1995), “unless it appears to a legal certainty that plaintiff was never entitled to recover the jurisdictional amount,” Kaufman v. Allstate, 561 F.3d 144, 151 (3d Cir. 2009). The “party who urges jurisdiction on a federal court bears the burden of proving that jurisdiction exists.” Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990).
This case began in June 2022 when Zanetich sued Walmart in state court. He sought back pay, front pay, and punitive damages for his alleged harms, but he did not specify the amount in controversy.
Walmart removed the matter to federal court in September 2022 and asserted federal jurisdiction based on the parties’ diversity of citizenship. It in notice of removal, it alleged that, together, Zanetich‘s demands for front pay, back pay, and punitive damages satisfy the amount-in-controversy requirement. First, it calculated back pay of approximately $24,000 as of the date of removal. (It relied on Zanetich‘s offer letter providing a start date of February 7, 2022, and a salary of $19.85 per hour for a 40-hour work week.) Second, it stated that Zanetich‘s front-pay demand could exceed the amount of back pay. By way of example, it stated that front pay calculated for one year would exceed $41,000. Third, it asserted that Zanetich‘s demand for punitive damages placed even more money in controversy, resulting in an amount over $75,000.
Later, in a letter brief to us, Walmart argued that punitive damages are unavailable to Zanetich. It invoked our case law holding that punitive damages are not included in the amount-in-controversy analysis where they are “patently frivolous and
For the purposes of our jurisdictional analysis, I accept Walmart‘s current position that punitive damages are unavailable. But the amount in controversy plausibly exceeds $75,000 based on back pay and front pay alone.
Although Auto-Owners guides us to assess the circumstances “at the time of the complaint‘s filing,” 835 F.3d at 396, the back-pay calculation is not limited to lost wages that had accrued through June 2022 when Zanetich filed his complaint.1 Nor is that calculation limited to lost wages through the date when Walmart removed this case to federal court. See Angus, 989 F.2d at 145. Rather, we consider the amount of back pay Zanetich plausibly could accrue between his would-be start date at Walmart and a judgment in his favor. See Foley v. Devaney, 528 F.2d 888, 889 n.1 (3d Cir. 1976) (per curiam) (deeming the amount in controversy “to exceed $10,000 although the claimed benefits do not yet total that
sum“) (citing Aetna Cas. & Surety Co. v. Flowers, 330 U.S. 464 (1947); Cuevas v. Wentworth Grp., No. A-3079-11T3, 2014 WL 4494166, at *23 (N.J. Super. Ct. App. Div. Sept. 15, 2014) (“Back pay is measured from the date of discharge to the date of the verdict” (citing Gimello v. Agency Rent-A-Car Sys., 594 A.2d 264, 279 (N.J. Super. Ct. App. Div. 1991)))). We also consider the front pay Zanetich plausibly could win if he prevails. See Donelson, 20 A.3d at 388 n.9 (“[f]ront pay refers to future lost wages accruing after a jury‘s verdict“).2
On this record, and given the uncertain amount of time for which Zanetich could be entitled to back and front pay, I cannot say with legal certainty that the amount in controversy from future damages was below
II
“Our role in diversity cases is to apply state law.” Sheridan v. NGK Metals Corp., 609 F.3d 239, 253 (3d Cir. 2010). Because we lack “a definitive ruling” by the New Jersey Supreme Court on the issue in this case, “we must predict how that court
Although “New Jersey courts have been reluctant to infer a statutory private right of action where the Legislature has not expressly provided for such action,” they have an established method for discerning when it is appropriate to do so. R.J. Gaydos Ins. Agency, Inc. v. Nat‘l Consumer Ins. Co., 773 A.2d 1132, 1143 (N.J. 2001). They consider “whether: (1) plaintiff is a member of the class for whose special benefit the statute was enacted; (2) there is any evidence that the Legislature intended to create a private right of action under the statute; and (3) it is consistent with the underlying purposes of the legislative scheme to infer the existence of such a remedy.” Id. And when they weigh these factors, their “primary goal has almost invariably been a search for the underlying legislative intent.” Id. (citation omitted).
The New Jersey Supreme Court adopted these factors from the United States Supreme Court‘s decision in Cort v. Ash, 422 U.S. 66 (1975). See R.J. Gaydos., 773 A.2d at 1143.
As the majority opinion details, Cort no longer governs federal law on implied causes of action. Maj. Op. at 13–16. Federal courts instead look to the text and structure of the statute. Id. at 15. But that is of no moment here because “the essence of diversity jurisdiction is that a federal court enforces State law and State policy.” DiAnoia Eatery, LLC v. Motorists Mut. Ins. Co., 10 F.4th 192, 209 (3d Cir. 2021). Were it otherwise, we would undermine the Erie doctrine, “which requires federal courts to treat diversity claims so as to discourage forum shopping and to reach results identical to the state courts.” Edelson v. Soricelli, 610 F.2d 131, 135 (3d Cir. 1979).3
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.
A. Factor One
New Jersey‘s first implied-private-right-of-action factor asks whether “plaintiff is a member of the class for whose
special benefit the statute was enacted.” R. J. Gaydos, 773 A.2d at 1143. Here, Zanetich sued under CREAMMA‘s employment-protection provision. The relevant text states that “[n]o 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
Zanetich alleges in his complaint that Walmart refused to hire him due to his use of cannabis. Taking this well-pleaded allegation as true, Zanetich is a member of the class for whose special benefit the statute was enacted.
The majority concludes otherwise. It reasons that this provision was not enacted to protect people like Zanetich because it “protect[s] both users and non-users of cannabis,” so it “sweeps very broadly, as every member of the public is either a cannabis user or a cannabis non-user.” Maj. Op. at 18. But that reasoning elides key language in the statute. CREAMMA‘s employment protection applies to any person whom an employer “refuse[s] to hire or employ . . . or . . . discharge[s] from employment or take[s] any adverse action against” because of cannabis use or nonuse.
CREAMMA‘s legislative history confirms that its employment protection was intended to benefit a limited class of people that includes Zanetich. See Jarrell v. Kaul, 123 A.3d 1022, 1030 (N.J. 2015) (consulting legislative history to discern whether the legislature intended to imply a cause of action). According to the New Jersey Assembly‘s Appropriations Committee, CREAMMA provides “consumer and employee protections” designed for “individuals” who face a “penalty in any manner, or deni[al of] any right or privilege, including but not limited to . . . disciplinary action by a business . . . solely for engaging in conduct with respect to personal use cannabis activities as permitted under [CREAMMA].” NJ Assemb. Approp. Comm. Statement, 220th Legislature, re A.B. No. 21, Jan. 22, 2021 (emphasis added).
This conclusion is further supported by a New Jersey appellate court decision. In Winslow v. Corporate Express, Inc., New Jersey‘s intermediate appellate court addressed whether the state‘s Wage Payment Law contains an implied private cause of action. 834 A.2d 1037, 1043 (N.J. Super. Ct. App. Div. 2003). That law required an employer to provide notice before changing pay rates. Id. at 1041-42. The court determined that “employees are the obvious special beneficiaries” of that law. Id. at 1043. It also noted that, in the absence of an express cause of action, New Jersey “courts have readily found an implied private right of action in statutes enacted to protect employees from wrongful conduct by employers.” Id. at 1043. As the majority rightly notes, the Winslow court reached this conclusion through an “implicit application[] of the modified Cort test,” as adopted by the New Jersey Supreme Court. Maj. Op. at 27. And the class protected by the Wage Payment Law in Winslow is broader than the class protected by CREAMMA‘s employment protection. See Maj. Op. at 18-19 (opining that the class at issue here
Instead of relying on the numerous federal court decisions discussed in the majority opinion, see Maj. Op. at 17-19, I am guided by the text of CREAMMA‘s employment provision and New Jersey authority. Those sources persuade me that CREAMMA‘s employment provision was created to protect a class of people that includes Zanetich.
B. Factor Two
The second factor asks whether “there is any evidence that the Legislature intended to create a private right of action under the statute.” R.J. Gaydos, 773 A.2d at 1143. In seeking the legislature‘s intent, we must be mindful that the New Jersey Supreme Court has found a “clear legislative intent to construe CREAMMA and its companion bills broadly and robustly so as to achieve their remedial purposes.” State v. Gomes, 288 A.3d 825, 841 (N.J. 2023); Young v. Schering Corp., 660 A.2d 1153, 1158 (N.J. 1995) (“Where the Legislature‘s intent is remedial, a court should construe a statute liberally“).
On the same day that the legislature enacted CREAMMA (including the employment protection at issue in this case), it enacted a separate employment protection forbidding any current or potential employer from making an adverse employment decision based solely on an applicant‘s prior marijuana arrest, charge, conviction, or adjudication of delinquency.
The legislature‘s express foreclosure of a private cause of action under the Prior Marijuana Prosecution Law—but not for CREAMMA‘s employment-protection provision enacted that very day—is telling. It mirrors the circumstances in Coleman v. Martinez, 254 A.3d 632 (N.J. 2021). Coleman involved a New Jersey statute immunizing licensed clinical social workers from suit. Id. at 647. When a non-clinical social worker sought immunity under that statute, the New Jersey Supreme Court observed that the legislature passed two different statutes during the same legislative session: one concerned clinical social workers and the other concerned non-clinical social workers. Id. Based on the proximity of those legislative actions, the court remarked, “[W]e assume that the legislature knew precisely what it was doing when it” extended immunity to one group and not the other. Id. “Indeed, statutes that deal with the same matter or subject should be read in pari materia and construed together as a unitary and harmonious whole[,] . . . especially . . . when the statutes in question were passed in the same session.” Id. (cleaned up). It concluded, “Had the legislature intended to confer immunity on licensed social workers, it would have stated so, and if the failure to provide immunity to social workers was an oversight, any corrective measure must be taken by the Legislature.” Id.
Applying this principle here, I assume the legislature knowingly foreclosed a private cause of action under the Prior Marijuana Prosecution Law‘s employment protections and opted—on that same day—not to do so for CREAMMA‘s similar protections.
Further, when assessing whether the legislature implied a cause of action, the New Jersey Supreme Court and Appellate Division often invoke the principle that “[i]f the legislature had wanted to foreclose
Even Walmart acknowledges that the New Jersey Supreme Court “seemingly appl[ied] a presumption in favor of implied causes of action” in Lally. Walmart Br. at 34. But Walmart argues (and the majority agrees) that CREAMMA lacks an implied private cause of action because the statute contains other enforcement mechanisms, including potential regulatory action by the Cannabis Regulatory Commission (“CRC“). Id.; Maj. Op. at 21.
Granted, the New Jersey Supreme Court has stated that, “[w]hen the Legislature has expressly created specific remedies, a court should always hesitate to recognize another unmentioned remedy.” Jarrell v. Kaul, 123 A.3d 1022, 1030 (N.J. 2015) (emphasis added). But I discern no express specific remedy for violations of this CREAMMA employment protection. As the majority acknowledges, the CRC‘s “jurisdiction, supervision, duties, functions, and powers . . . extend to any person who buys, sells, cultivates, produces, manufactures, transports, or delivers any cannabis or cannabis items within this State.”
The CRC‘s own interpretation of CREAMMA accords with mine. The CRC explains its function as “writing and enforcing the regulations that direct the sales, purchases, and business activities related to cannabis in New Jersey.” Cannabis Regulatory Commission, Frequently Asked Questions, available at https://perma.cc/M36U-GXLU. That includes “impos[ing] fines or other sanctions on licensed cannabis business[es] that violate regulations.” Id.5 But the CRC “does not perform any law enforcement duties or regulate unpermitted or unlicensed entities in any way[.]” Id. It is undisputed that Walmart is not permitted or licensed to have a cannabis business in New Jersey.
In sum, I view the legislative-intent factor in Zanetich‘s favor. This is consistent with the New Jersey Supreme Court‘s understanding of the “clear legislative intent to construe CREAMMA and its companion bills broadly and robustly,” Gomes, 288 A.3d at 841, and the legislature‘s decision not to foreclose a private right of action for CREAMMA‘s employment protections.
The New Jersey Supreme Court has discerned no legislative intent to authorize a private cause of action “in a statutory scheme that already contains civil penalty provisions,” R.J. Gaydos, 773 A.2d at 1145; where “a bare criminal statute” contains “absolutely no indication that civil enforcement of any kind was available to anyone,” In re State Comm‘n of Inv., 527 A.2d 851, 854 (N.J. 1987); and where a statute contains an “elaborate regulatory scheme” for controlling the target of the private suit, Campione, Inc., 714 A.2d at 310. None of those conditions is present here.
C. Factor Three
The third factor asks whether “it is consistent with the underlying purposes of the legislative scheme to infer the existence of [a private] remedy.” R.J. Gaydos, 773 A.2d at 1143. I predict that the New Jersey Supreme Court would say it is.
In enacting CREAMMA, the legislature sought to “adopt a new approach to [New Jersey‘s] marijuana policies by controlling and legalizing . . . cannabis . . . for adults.”
D. Balance of Factors
After New Jersey courts consider the three implied-private-right-of-action factors, they weigh these factors with the primary goal of discerning the legislature‘s intent. R.J. Gaydos, 773 A.2d at 1143. In my view, each factor supports Zanetich having an implied private right to enforce CREAMMA‘s employment protection. Thus, no weighing is necessary. I predict that the New Jersey Supreme Court would recognize this cause of action. I respectfully dissent from the majority‘s conclusion to the contrary.
III
As is now plain, the question in this case is whether CREAMMA gives a prospective employee who is not hired because of cannabis use a private right of action to sue his would-be employer. The New Jersey Supreme Court is best suited to answer that question, so I would certify the question to that court.
Before our Court certifies a question of law to a state‘s highest court, we consider certain factors. One is whether “the relevant question‘s eventual resolution [is] unclear and control[s] an issue in the case.” United States v. Defreitas, 29 F.4th 135, 142 (3d Cir. 2022). The question at issue here controls whether Zanetich can proceed with his lawsuit. And the various opinions in Zanetich‘s case demonstrate that the eventual resolution of this question is debatable.
The majority and I would resolve the question differently. The majority‘s reasoning also differs from the District Court‘s. See Zanetich, 2023 WL 3644813, at *5 (determining that “the First Cort factor weighs in favor of finding an implied cause of action“).7 And the New Jersey legal authorities seem to contradict each other in ways material to the question before us. Compare Miller v. Zoby, 595 A.2d 1104, 1108 (N.J. Super. Ct. App. Div. 1991) (“the fact that no general cause of action . . . has been created is to us some reliable evidence that the legislature neither intended to create such a cause of action by silence or desired the judiciary to create one by implication“), with Boldt, 726 A.2d at 982 (“If the Legislature intended to foreclose plaintiffs . . . from seeking the relief sought here, it would have explicitly limited the availability of that remedy or relief.“). This counsels in favor of certification.
Another factor is the importance of the question to be certified.8 Defreitas, 29 F.4th at 142. For instance, when a question involves important public policy choices or value judgments, a state‘s high
The importance factor also counsels in favor of certification. Zanetich‘s case arises in the wake of a watershed statewide referendum in which New Jerseyans opted to legalize the personal use of marijuana by adults. Effectuating the will of the voters required the legislature to balance private and administrative enforcement mechanisms. The New Jersey Supreme Court—not this Court—should resolve the ambiguities about how the legislature conducted that balancing. Permitting the state high court to do so would support cooperative judicial federalism. See id.
This issue is also likely to recur. For decades, New Jersey employers have administered drug tests as a condition of employment in jobs as varied as salespeople, law enforcement officers, funeral home directors, and custodians.9 Given the sheer number of employment relationships potentially impacted by CREAMMA‘s employment protections, the issue in this case is likely to arise again.
A third factor is the timeliness of the request for certification. Defreitas, 29 F.4th at 142. Zanetich filed his action in state court, where he could have appealed an adverse ruling to a New Jersey appellate court. Zanetich could not seek certification immediately after Walmart removed the action to federal court. See N.J. Ct. R. 2:12A–1 (permitting submissions of certified questions of law from this Court but not from federal district courts). He sought certification at his first opportunity to do so—in his brief to this Court.
For all these reasons, I would certify the question of law in this case to the New Jersey Supreme Court.