NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2715-23
DARLENE SANDERS,
Plaintiff-Appellant, APPROVED FOR PUBLICATION May 26, 2026 v. APPELLATE DIVISION
THE LEVARI GROUP, LLC, d/b/a FIRST CHOICE FREEZER,
Defendant-Respondent.
Argued January 29, 2026 – Decided May 26, 2026
Before Judges Marczyk, Bishop-Thompson and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-0196-23.
Joshua S. Boyette argued the cause for appellant (Swartz Swidler, LLC, attorneys; Joshua S. Boyette, on the briefs).
Andrew Marra argued the cause for respondent (Biancamano & Di Stefano, PC, attorneys; Rachel K. Hall and Andrew Marra, on the brief).
Marie Cepeda Mekosh, Deputy Attorney General, argued the cause for amicus curiae Attorney General of the State of New Jersey (Jennifer Davenport, Acting Attorney General, attorney; Stephen Ehrlich, Deputy Solicitor General, of counsel; Viviana M. Hanley and Marie Cepeda Mekosh, Deputy Attorneys General, on the brief).
The opinion of the court was delivered by
PUGLISI, J.A.D.
Plaintiff Darlene Sanders appeals from two Law Division orders
dismissing her claims against defendant The Levari Group, LLC, d/b/a First
Choice Freezer. At issue are certain provisions in the Cannabis Regulatory,
Enforcement Assistance, and Market Modernization Act (CREAMMA),
N.J.S.A. 24:6I-31 to -56, which prohibit an employer from refusing to hire an
individual because that person has tested positive for cannabinoid metabolites.
As a matter of first impression, this case asks whether CREAMMA provides
that individual a private right of action against the employer for allegedly
violating these prohibitions.
For the foregoing reasons, we conclude the answer is yes. We therefore
reverse the orders dismissing plaintiff's claims based on CREAMMA,
negligence, invasion of privacy, and breach of contract, and remand for further
proceedings. However, we affirm the order dismissing plaintiff's common law
claim under Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (1980).
A-2715-23 2 I.
In November 2020, the New Jersey Constitution was amended to
legalize recreational cannabis use by individuals over twenty-one years of age,
effective January 2021. N.J. Const. art. IV, § 7, ¶ 13. The amendment states
the manufacture, sale, and consumption of cannabis by such individuals "shall
be lawful and subject to regulation by the Cannabis Regulatory Commission
[(CRC)]."1 Ibid.
On February 22, 2021, the Legislature enacted two sets of provisions
relevant here, "to regulate the newly legalized activity and achieve the
constitutional amendment's public policy goals." State v. Gomes, 253 N.J. 6,
24 (2023) (quoting N.J. Div. of Child Prot. & Perm. v. D.H., 469 N.J. Super.
107, 128 (App. Div. 2021)). First, CREAMMA "adopt[ed] a new approach
to . . . 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."
N.J.S.A. 24:6I-32(a). Second, amendments to the criminal code, L. 2021, c.
19, modified certain sections to: decriminalize recreational cannabis use and
1 The Legislature established the CRC in 2019 to oversee New Jersey's medical cannabis program under the Jake Honig Compassionate Use Medical Cannabis Act (CUMCA), N.J.S.A. 24:6I-1 to -30. Prior to the enactment of CUMCA, the CRC's functions were carried out by the Department of Health under the New Jersey Compassionate Use Medical Marijuana Act, L. 2009, c. 307. See N.J.S.A. 24:6I-24.
A-2715-23 3 possession; amend provisions concerning pretrial detention and conditions of
probation and parole; and establish an expungement process for certain prior
cannabis-related convictions.
N.J.S.A. 24:6I-32 enumerates the Legislature's findings and declarations,
explaining CREAMMA's purpose to: control and legalize cannabis for adults;
prevent the sale or distribution of cannabis to persons under age twenty -one;
eliminate issues caused by the unregulated cultivation and sale of marijuana
and divert sales from such illicit enterprises; free up law enforcement
resources previously devoted to marijuana possession offenses; and provide
support for substance use disorder treatment programs. N.J.S.A. 24:6I -32(n)
declares "[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," supporting CREAMMA's purpose to mitigate or eliminate such
impacts. Our Supreme Court determined the "litany of findings" in N.J.S.A.
24:6I-32 "reflect a clear legislative intent to construe CREAMMA . . . robustly
so as to achieve [its] remedial purposes." Gomes, 253 N.J. at 33.
CREAMMA expanded the scope and duties of the CRC, bestowing on it
"all powers necessary or proper to enable it to carry out [its] duties, functions,
and powers" set forth in the statute. N.J.S.A. 24:6I-34(a). The CRC's
A-2715-23 4 "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." Ibid. Its statutory
"duties, functions, and powers" related to the recreational use of cannabis
include: regulating all aspects of the cannabis industry; issuing, revoking, and
suspending licenses to engage in that industry; adopting regulations necessary
to carry out CREAMMA's "intent and provisions"; regulating the
advertisement of cannabis products; and regulating the use of cannabis for
"scientific, pharmaceutical, manufacturing, mechanical, industrial, and other
purposes." N.J.S.A. 24:6I-34(b).
The CRC also has a duty to "investigate and aid in the prosecution of
every violation of the statutory laws of this State relating to cannabis and
cannabis items and to cooperate in the prosecution of offenders before any
State court of competent jurisdiction." N.J.S.A. 24:6I-34(b)(3). The CRC's
website clarifies it "imposes fines or other sanctions on licensed cannabis
business[es] that violate regulations," but "does not perform any law
enforcement duties or regulate unpermitted or unlicensed entities in any way." 2
2 Information Hub FAQs – The Commission, Cannabis Regul. Comm'n, https://www.nj.gov/cannabis/resources/faqs/commission/ (last visited May 13, 2026).
A-2715-23 5 The CRC's statutory role is reflected in its regulations, N.J.A.C. 17:30 -
20.1 to .10, which establish its procedures to monitor licensed entities for
violations of CREAMMA and related regulations. N.J.A.C. 17:30-20.5, titled
"Enforcement action and sanctions for noncompliance," states: "In response to
a violation of any provision of [CREAMMA] or [these rules], the [CRC] is
authorized to take enforcement action or impose sanctions upon a license
holder," including "civil monetary penalties; suspension, revocation, non -
renewal, or denial of a license; referral to State or local law enforcement . . . or
any combination thereof." The CRC's regulations, however, do not contain
any procedures for enforcement actions against unlicensed individuals or
entities such as defendant.
The majority of CREAMMA regulates the cultivation, manufacture, and
sale of cannabis for recreational use. N.J.S.A. 24:6I-35 to -46. Other sections
concern the interplay of the recreational industry and CUMCA's medical
cannabis program, N.J.S.A. 24:6I-47 to -48; and the establishment of a
"Cannabis Regulatory, Enforcement Assistance, and Marketplace
Modernization Fund," N.J.S.A. 24:6I-50. Pertinent here, CREAMMA also
includes anti-discrimination provisions protecting individuals who lawfully
use cannabis. N.J.S.A. 24:6I-51(b)(1), -52(a)(1).
A-2715-23 6 N.J.S.A. 24:6I-51, titled "Prohibition of discrimination against licensees
and consumers; exceptions," states the "presence of cannabinoid metabolites in
the bodily fluids of a person engaged in conduct permitted under
[CREAMMA]," if that person is
a student, tenant, or employee, other than as set forth in [N.J.S.A. 24:6I-52], shall not form the basis for refusal to enroll or employ or lease to or otherwise penalize that person, unless failing to [take such action] would put [a] school, employer, or landlord in violation of a federal contract or cause it to lose federal funding.
[N.J.S.A. 24:6I-51(b)(1).]
If the person is a patient, the presence of the metabolite shall not result in the
"denial of medical care," and if the person is a parent or legal guardian of a
child, its presence shall not "form the sole or primary basis for any action or
proceeding by the Division of Child Protection and Permanency." N.J.S.A.
24:6I-51(b)(2) to (3).
Under N.J.S.A. 24:6I-52(a)(1):
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, and an employee shall not be subject to any adverse action by an employer solely due to the presence of cannabinoid metabolites in the employee's
A-2715-23 7 bodily fluid from engaging in conduct permitted under [CREAMMA].
This section further permits an employer to require an employee to take a drug
test randomly or under certain circumstances, and allows the employer to use
the results "when determining the appropriate employment action concerning
[an] employee, including, but not limited to dismissal, suspension, demotion,
or other disciplinary action." Ibid.
Initially, Assembly Bill A. 21 (2021), introduced November 5, 2020, did
not contain provisions concerning workplace drug testing. However, the bill
stated nothing in CREAMMA would alter the rights of employers "to maintain
a drug[-] and alcohol[-]free workplace or require an employer to permit or
accommodate" employees using or being under the influence of cannabis in the
workplace. This language was eventually codified at N.J.S.A. 24:6I-
52(b)(1)(a).
The revised version of A. 21 (2021), reprinted on November 19, 2020,
added the drug testing and employee impairment language eventually enacted.
The Assembly Appropriations Committee Statement to the revised bill
summarized the employee/prospective employee protections but did not detail
the Legislature's reasoning or decision-making process concerning these
provisions. This statement indicated the additions to N.J.S.A. 24:6I-52 were
made to "clarify the balance between a general protection for a person to not
A-2715-23 8 have an employer refuse to hire or employ" the individual based on the use of
cannabis, "with an employer's authority to require an employee [to] undergo a
drug test" under specific circumstances. Assemb. Appropriations Comm.
Statement to A. 21, at 25 (Nov. 19, 2020). The legislative history is silent on
the enforcement of the anti-discrimination provisions in N.J.S.A. 24:6I-52.
The same day it enacted CREAMMA, the Legislature amended the
Opportunity to Compete Act, N.J.S.A. 34:6B-11 to -23. The added provision
states an employer "shall not be permitted to, when making an employment
decision, rely solely on, or require any applicant to disclose or reveal, or take
any adverse action against any applicant for employment solely on the basis
of, any arrest, charge, conviction, or adjudication of delinquency" of certain
enumerated marijuana-related offenses. N.J.S.A. 34:6B-21(a). Any employer
who violates this prohibition is liable for "a civil penalty . . . which shall be
collectible by the Commissioner of Labor and Workforce Development in a
summary proceeding pursuant to the 'Penalty Enforcement Law of 1999,'
[N.J.S.A. 2A:58-10 to -12]." N.J.S.A. 34:6B-21(b). This penalty is "the sole
remedy provided for violations of this section," ibid., and nothing in the
provision "shall be construed as creating, establishing, or authorizing a private
cause of action by an aggrieved person against an employer who has violated,
A-2715-23 9 or is alleged to have violated, the provisions of this section," N.J.S.A. 34:6B-
21(c).
II.
In April 2023, plaintiff filed a complaint against defendant, alleging the
company "subjected [her] to a pre-employment drug screening and then
refused to hire [her] based on [her] recreational use of cannabis items." Her
complaint alleges that on December 6 and 13, 2022, she interviewed for a
customer service representative position with defendant. She was then offered
the position and accepted.
The complaint stated, "as part of its standard hiring process," defendant
"subjected [p]laintiff to a drug test." The test results "indicated that she had
used cannabis items within the past [thirty] days." Plaintiff alleged she used
cannabis "for recreational purposes" within that time frame but did not use
cannabis the day of the drug test and "was not under the influence . . . at the
time that she applied for employment with [d]efendant."
In early January 2023, plaintiff contacted defendant's human resources
department, "inquiring about her start date." She alleged the company's
representative "offered [her] the opportunity to submit to a repeat drug test
within a week['s] time at [her] expense." Plaintiff did not retest because she
A-2715-23 10 "did not have the funds." Defendant then "rescinded [its] offer and refused to
hire" her.
Count one of the complaint alleged defendant violated plaintiff's rights
under CREAMMA "by refusing to hire her on the basis of her recreational use
of cannabis items." Count two alleged defendant's refusal to hire her based on
her cannabis use contravened "clearly mandated public policy embodied by
CREAMMA," and therefore violated New Jersey common law under Pierce,
84 N.J. at 72.
Plaintiff sought an order prohibiting defendant from "discriminating
against employees or prospective employees based on their use of cannabis
items." She also demanded compensatory damages consisting of pay and
benefits, lost past and future earnings, punitive damages, damages for
emotional distress and pain and suffering, and attorneys' fees and costs.
In lieu of an answer, defendant moved to dismiss the complaint for
failure to state a claim under Rule 4:6-2(e). Plaintiff cross-moved for leave to
file an amended complaint to add counts alleging breach of contract,
negligence, and violation of privacy. Specifically, proposed count three
alleged: defendant "made an offer of employment subject to [a] condition
which [p]laintiff accepted, thereby forming a conditional employment
contract"; defendant "was not lawfully permitted to condition its offer . . . on
A-2715-23 11 [her not having] a positive cannabis test under New Jersey law"; and
defendant's "failure to honor that contract due to the occurrence of an unlawful
condition violated [its] covenant of good faith and fair dealing." Proposed
count four alleged defendant "had a duty not to discriminate against
recreational marijuana users" as set forth in CREAMMA, "fail[ed] to follow
that standard of care," and therefore was liable for negligence. Proposed count
five stated defendant "caused [p]laintiff to give up her right to privacy"
regarding her bodily fluids because, had she known defendant would revoke its
job offer "solely based on a positive test for cannabis," she would not have
"allowed th[e] intrusion" of the drug test to occur.
After argument on the motions, the trial court opined plaintiff's remedy
was "through the CRC and not the Superior Court." However, it requested the
parties submit supplemental information concerning whether the CRC
provided "an actual avenue" to redress "these types of disputes."
At the argument following the submission of supplemental information,
plaintiff's counsel averred the CRC had neither the procedure in place to
address plaintiff's complaint nor the authority to do so. The court, having
reviewed the CRC's website, acknowledged the CRC did "not make it easy for
an individual to seek relief for a violation of [CREAMMA] for something
other than licensing issues," which was "unfortunate." It found plaintiff was "a
A-2715-23 12 member of a class . . . entitled to benefit from" CREAMMA's anti-
discrimination provision but determined there was no evidence the Legislature
meant to imply a private right of action to enforce that provision, particularly
since it "g[a]ve the CRC the authority to create all . . . regulations and
prosecute violations of [CREAMMA]." Thus, the court: dismissed plaintiff's
CREAMMA and Pierce claims; denied amendment of the complaint to add
negligence and invasion of privacy claims because they would be futile; and
permitted amendment of the complaint to add the breach of contract claim.
Defendant subsequently moved to dismiss the amended complaint under
Rule 4:6-2(e), arguing it had given plaintiff "a contingent offer of an at-will
employment." Because plaintiff refused to comply with the repeat drug test,
she "did not satisfy the conditions of the offer" and no contract ever "became
effective" between the parties.
The court found if the "consideration" needed to form the contract was
that plaintiff take a drug test, she did not fulfill this requirement because she
failed to take a second test "simply because of funds." Because the second test
was the additional consideration needed to "complete the offer," plaintiff's
declination of the retest meant "the contract did not proceed, and thus, there
was no breach of contract."
A-2715-23 13 III.
We review orders granting a motion to dismiss for failure to state a
claim under Rule 4:6-2(e) de novo. Pace v. Hamilton Cove, 258 N.J. 82, 95-96
(2024). Such review is "limited to examining the legal sufficiency of the facts
alleged on the face of the complaint," and, in determining whether dismissal
under Rule 4:6-2(e) is warranted, the court should not concern itself with the
plaintiff's ability to prove their allegations. Est. of Campbell v. Woodcliff
Health & Rehab. Ctr., 479 N.J. Super. 64, 70-71 (App. Div. 2024) (quoting
Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). In
doing so, we "giv[e] the plaintiff the benefit of 'every reasonable inference of
fact.'" Baskin v. P.C. Richard & Son, LLC, 246 N.J. 157, 171 (2021) (quoting
Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C.,
237 N.J. 91, 107 (2019)). "[W]e must search the complaint 'thoroughly and
with liberality to ascertain whether the fundament of a cause of action may be
gleaned even from an obscure statement of claim, opportunity being given to
amend if necessary.'" Robey v. SPARC Grp. LLC, 256 N.J. 541, 554 (2024)
(quoting Baskin, 246 N.J. at 171) (internal quotation marks omitted).
"Nevertheless, 'if the complaint states no claim that supports relief, and
discovery will not give rise to such a claim, the action should be dismissed.'"
Pace, 258 N.J. at 96 (quoting Dimitrakopoulos, 237 N.J. at 107). Thus, a
A-2715-23 14 motion to dismiss is only granted in the "rarest of instances." Printing-Mart
Morristown, 116 N.J. at 771-72.
A.
Plaintiff argues the trial court erred in finding CREAMMA does not
provide a private right of action to individuals like herself. She asserts this
right is implied by the text and framework of CREAMMA as a whole,
informed by the legislative history, and contends she has met all three prongs
set forth in Cort v. Ash, 422 U.S. 66 (1975), for establishing a private right of
action.
More specifically, plaintiff asserts: N.J.S.A. 24:6I-52 contains "rights-
creating language"; the Legislature specifically granted the CRC certain
powers but was deliberately silent on enforcement of CREAMMA's anti-
discrimination provisions; and the absence of a private right of action would
render these provisions "meaningless." She further argues a private right of
action is consistent with CREAMMA's underlying purpose to "ensur[e] that
recreational users of cannabis are not treated differently in terms of their civil
rights and ability to participate in civic society, including employment."
The Attorney General, as amicus curiae, echoes plaintiff's contention the
Cort factors have been met. It argues CREAMMA was intended to protect
individuals from discrimination in hiring, and the Legislature did not empower
A-2715-23 15 the CRC to helm any "alternative enforcement scheme." The Attorney General
points out the Legislature did not preclude a private right of action by
providing an exclusive remedy, as it did in N.J.S.A. 34:6B-21(c), passed the
same day as CREAMMA.
In general, matters of statutory interpretation are reviewed de novo.
Grillo v. State, 469 N.J. Super. 267, 274 (App. Div. 2021). A court's
overriding goal of statutory interpretation is to "determine as best [it] can the
intent of the Legislature, and to give effect to that intent." Pitney Bowes Bank,
Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 385 (App. Div. 2015)
(quoting State v. Hudson, 209 N.J. 513, 529 (2012)).
To ascertain legislative intent, the court must "begin with the statute's
plain language and give terms their ordinary meaning." Mueller v. Kean
Univ., 474 N.J. Super. 272, 283 (App. Div. 2022) (quoting State v. S.B., 230
N.J. 62, 68 (2017)). "It may also 'draw inferences based on the statute's
overall structure and composition' to 'construe the meaning of the Legislature's
selected words.'" Id. at 283-84 (quoting S.B., 230 N.J. at 68). "'If the
Legislature's intent is clear on the face of the statute, then the "interpretative
process is over."'" Id. at 284 (quoting S.B., 230 N.J. at 68). However, if the
statute's language is ambiguous, the court may "resort to 'extrinsic
interpretative aids, including legislative history' to determine the statute's
A-2715-23 16 meaning." Malzberg v. Josey, 473 N.J. Super. 537, 546 (App. Div. 2022)
(quoting State v. J.V., 242 N.J. 432, 443 (2020)). Ultimately, statutory
language "should be . . . construed in a common-sense manner," and in a way
that will not render any part of the enactment "superfluous." State in the Int.
of K.O., 217 N.J. 83, 91 (2014).
N.J.S.A. 24:6I-51 and -52 do not expressly provide a private right of
action for individuals seeking to redress an adverse employment decision
based on their lawful use of cannabis. However, federal and New Jersey
courts "have held that a statute that does not expressly create a private cause of
action may, nonetheless, implicitly create one." Jarrell v. Kaul, 223 N.J. 294,
307 (2015).
In Cort, 422 U.S. at 78, the United States Supreme Court established the
test to determine whether such a remedy exists. In adopting this test, our
Supreme Court requires a court to consider:
[1] whether the plaintiff is "one of the class for whose especial benefit the statute was enacted"; [2] whether there is any evidence that the Legislature intended to create a private cause of action under the statute; and [3] whether implication of a private cause of action in [a given] case would be "consistent with the underlying purposes of the legislative scheme."
[In re Resol. of State Comm'n of Investigation, 108 N.J. 35, 41 (1987) (citation omitted) (quoting Cort, 422 U.S. at 78).]
A-2715-23 17 "Subsequent cases have highlighted the various" Cort factors "to differing
extents, but the primary goal has almost invariably been a search for the
underlying legislative intent." Jalowiecki v. Leuc, 182 N.J. Super. 22, 30
(App. Div. 1981).
In R.J. Gaydos Insurance Agency, Inc. v. National Consumer Insurance
Co., 168 N.J. 255, 271 (2001), our Supreme Court noted, "New Jersey courts
have been reluctant to infer a statutory private right of action where the
Legislature has not expressly provided for such action." However, "courts
have readily found an implied private right of action in statutes enacted to
protect employees from wrongful conduct by employers." Winslow v. Corp.
Express, Inc., 364 N.J. Super. 128, 137 (App. Div. 2003).
As a key example, in Peper v. Princeton University Board of Trustees,
151 N.J. Super. 15, 22-26 (App. Div. 1977), rev'd on other grounds, 77 N.J. 55
(1978), we considered whether a plaintiff could sue an employer alleging sex -
based discrimination in promotion decisions under the Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -50, which at the time did not yet
explicitly provide such a right existed. We held there was "no question" the
plaintiff, as an "employee within the intendment of the [LAD]," was meant to
benefit from its prohibition on sex-based employment discrimination. Id. at
23. Although "pursuit of administrative relief from the Division on Civil
A-2715-23 18 Rights might have been more appropriate and expeditious than direct resort to
the court, [the] plaintiff was nevertheless entitled to invoke the Superior
Court's concurrent jurisdiction over practices alleged to be in violation of the
[LAD]." Ibid.
In Lally v. Copygraphics, 173 N.J. Super. 162, 181-82 (App. Div. 1980),
we held an employee alleging retaliatory discrimination by an employer after
filing a worker's compensation claim, in violation of N.J.S.A. 34:15-39.1 to .3,
could "elect to pursue either a judicial or administrative remedy." The
worker's compensation statutes, as they existed at the time, prohibited such
discrimination and provided for fines, additional monetary penalties, and even
incarceration for employers and their agents for violations. Id. at 166. An
aggrieved employee was also entitled to restoration of employment and
compensation for any loss of wages arising out of the discriminatory action.
Ibid. In reversing the trial court's limitation of the plaintiff's recourse to a
complaint in the Division of Worker's Compensation, we held that to fully
execute the Legislature's intent to eradicate retaliatory discrimination, the
plaintiff was entitled to pursue a remedy through a Superior Court action. Id.
at 178-82.
The Supreme Court affirmed, noting a "common law action for wrongful
discharge" would "effectuate statutory objectives and complement the
A-2715-23 19 legislative and administrative policies which undergird the workers'
compensation laws." Lally v. Copygraphics, 85 N.J. 668, 670-71 (1981). In
so concluding, the Court commented: "If the Legislature had wanted to
foreclose a judicial cause of action, it would have done so expressly." Id. at
671.
Although these cases pre-date the adoption of the Cort test in New
Jersey, they nevertheless have been cited and followed in subsequent decisions
where an implied private right of action has been found. Cf. Winslow, 364
N.J. Super. at 137-38 (concluding under the Wage Payment Law, N.J.S.A.
34:11-4.7, a private right of action existed for an employee whose commission
rate was reduced without prior notice).
We address the Cort factors in turn. The first factor requires us to
consider whether the statutory provision was intended to benefit a particular
class of plaintiffs. In re State Comm'n of Investigation, 108 N.J. at 41. For a
statute to create a private right of action, "its text must be 'phrased in terms of
the persons benefited.'" Gonzaga Univ. v. Doe, 536 U.S. 273, 284 (2002)
(quoting Cannon v. Univ. of Chi., 441 U.S. 677, 692 n.13 (1979)).
Where the plaintiff is not the statute's intended beneficiary, this factor
weighs against a private right of action. See R.J. Gaydos, 168 N.J. at 279
(insurance reform statute containing "consumer-oriented" language focused on
A-2715-23 20 insuring "the motorists of this State" did not create a private right of action for
an insurance agent claiming wrongful termination); In re State Comm'n of
Investigation, 108 N.J. at 42 (statute governing disclosures of confidential
information by the State Commission of Investigation (SCI) was not enacted to
protect the targets of investigations, but the SCI itself); Jalowiecki, 182 N.J.
Super. at 31 (statutory and regulatory scheme governing sewerage disposal
was intended to "preserve the public health . . . for the community as a whole,
not for any specific person or group of people who might be affected by"
improper disposal).
On the other hand, where the statute is intended to benefit the plaintiff's
class, the factor militates in favor of the plaintiff. See Boldt v.
Correspondence Mgmt., Inc., 320 N.J. Super. 74, 77-78, 88 (App. Div. 1999)
(patients who were overcharged for copies of their medical records in violation
of administrative code were "clearly in the class to be protected by the
regulations"); Parks v. Pep Boys, 282 N.J. Super. 1, 6, 12, 15 (App. Div. 1995)
(family of a child who died after "huffing" freon could sue seller under a
statute prohibiting the sale of such chemicals when the seller has reasonable
cause to suspect they would be used to induce intoxication).
In light of the prevailing caselaw, we are persuaded the first Cort factor
weighs in favor of plaintiff. Both N.J.S.A. 24:6I-51(b)(1) and -52(a)(1) do not
A-2715-23 21 prohibit discriminatory actions generally; they specifically prohibit
employment-related discrimination based on an individual's testing positive for
cannabinoid metabolites. Thus, we conclude plaintiff, as a prospective
employee whose job offer was allegedly rescinded after the potential employer
discovered she tested positive for cannabinoid metabolites, is "one of the class
for whose especial benefit the statute[s] w[ere] enacted." Cort, 422 U.S. at 78.
The second Cort factor requires consideration of whether there is any
evidence the Legislature intended to create a private right of action for the
special class found in the previous factor. In re State Comm'n of Investigation,
108 N.J. at 41. A court should be mindful "the legislative history of a statute
that does not expressly create or deny a private remedy will typically be
equally silent or ambiguous on the question." Cannon, 441 U.S. at 694. Thus,
in situations where a statute clearly "has granted a class of persons certain
rights," it is unnecessary to find definitive evidence of "an intention to create a
private cause of action." Cort, 422 U.S. at 82. However, explicit evidence of
a "purpose to deny such cause of action would be controlling." Ibid.
One consideration is whether a statute contains "'rights-creating'
language." Gonzaga Univ., 536 U.S. at 287 (quoting Alexander v. Sandoval,
532 U.S. 275, 288-89 (2001)). "[W]here the text and structure of a statute
provide no indication that [the Legislature] intends to create new individual
A-2715-23 22 rights, there is no basis for a private suit . . . under an implied right of action."
Id. at 286.
Although CREAMMA does not state employees or prospective
employees "shall have the right" to use cannabis, N.J.S.A. 24:6I-51(b)(1)
provides the use of cannabis "shall not form the basis for refusal to . . . employ
. . . that person." Likewise, while N.J.S.A. 24:6I-52(a)(1) dictates "[n]o
employer shall" take adverse action against a person "because that person does
or does not . . . use cannabis items"—language that categorically applies to all
persons—it also dictates "an employee shall not be subject to any adverse
action by an employer solely due to the presence of cannabinoid metabolites"
from engaging in the lawful use of cannabis. The Supreme Court held similar
text—Title IX's proscription "no person shall" be discriminated against on the
basis of sex by an educational institution—to be "rights-creating" language.
Cannon, 441 U.S. at 694-703.
Another consideration when evaluating the second Cort factor is whether
the Legislature provided an administrative remedy or other enforcement
mechanism for the statute in question. Where the Legislature has made
"express statutory provision for one form of proceeding," this "ordinarily
implies that no other means of enforcement was intended." Sec. Inv. Prot.
Corp. v. Barbour, 421 U.S. 412, 419 (1975).
A-2715-23 23 Courts also consider the availability of an alternative remedy or
enforcement proceeding for an aggrieved party. "Generally, [our] courts
decline to grant relief when an adequate administrative remedy exists."
Campione v. Adamar of N.J., Inc., 155 N.J. 245, 261 (1998).
Where the Legislature has vested an administrative agency with
"exclusive primary jurisdiction, that agency may be the only forum in which a
party initially may seek relief." Ibid.; see id. at 264-66 (no private right of
action by casino patron identified as a "card counter" because the Casino
Control Commission has broad powers to license, investigate, adjudicate, and
punish regulatory violations); Castro v. NYT Television, 370 N.J. Super. 282,
292 (App. Div. 2004) (no private right of action where a statute provided right
to file complaint with the Department of Health); Jarrell, 223 N.J. at 309 (no
private right of action for violation of statutes requiring a physician to
maintain liability insurance because enforcement is a matter for professional
boards); R.J. Gaydos, 168 N.J. at 280 (no private right of action where
violation of insurance statute is a matter of enforcement by the Department of
Banking and Insurance); In re State Comm'n of Investigation, 108 N.J. at 44
(no private right of action where the Legislature "specifically provided a
mechanism to ensure that the Attorney General [would] check violations of the
duty of confidentiality imposed by" statute).
A-2715-23 24 If, however, such jurisdiction has not been vested in an agency, "a
plaintiff may still seek relief in the courts." Campione, 155 N.J. at 261; see
also Boldt, 320 N.J. Super. at 87-88 (private right of action existed because
regulations did not provide for an administrative remedy).
While the Legislature established an exclusive administrative remedy for
a violation of N.J.S.A. 34:6B-21, which prohibits employment discrimination
based on certain prior convictions for marijuana-related offenses, that
amendment to the Opportunity to Compete Act does not demonstrate the
Legislature intended to preclude a private right of action under CREAMMA.
See Cannon, 441 U.S. at 711 ("The fact that other provisions of a complex
statutory scheme create express [administrative] remedies has not been
accepted as a sufficient reason for refusing to imply an otherwise appropriate
remedy under a separate section.").
A third indicator of intent is whether the Legislature provided a private
right of action in other related provisions. For example, in Touche Ross & Co.
v. Redington, 442 U.S. 560, 571-72 (1979), the Court noted the provision at
issue was "flanked by provisions of the [same] Act that explicitly grant private
causes of action." It concluded "when Congress wished to provide a private
damages remedy" for a violation of a provision within the greater statute, "it
A-2715-23 25 knew how to do so and did so expressly." Id. at 572. No other sections of
CREAMMA provide for a private right of action.
We are therefore persuaded the second Cort factor weighs in favor of
plaintiff. N.J.S.A. 24:6I-51 and -52 do not contain an administrative remedy
for those discriminated against in violation of its terms. CREAMMA does not
explicitly authorize the CRC or any other State entity to enforce these
provisions through prosecution, civil penalty, or any other consequence. The
CRC is charged with regulating the cannabis industry, along with businesses
and individuals holding licenses or permits to participate in the industry. Its
authority is limited "to any person who buys, sells, cultivates, produces,
manufactures, transports, or delivers any cannabis or cannabis items within
this State." N.J.S.A. 24:6I-34. Under N.J.A.C. 17:30-20.5, the CRC may only
impose sanctions for "a violation of any provision of [CREAMMA]" on a
"license holder." Thus, there is no concern a private right of action to enforce
CREAMMA's anti-discrimination provisions would infringe upon, or be
duplicative of, agency action.
The third Cort factor asks whether a private right of action would be
consistent with the underlying purposes of the legislative scheme. In re State
Comm'n of Investigation, 108 N.J. at 41. If such a remedy would frustrate
those purposes, it should not be implied, but where it is "necessary or at least
A-2715-23 26 helpful to [their] accomplishment," courts are "decidedly receptive to its
implication." Cannon, 441 U.S. at 703; see also Parks, 282 N.J. Super. at 15
(allowing private remedy for individuals harmed by their misuse of dangerous
chemicals against the seller of those chemicals "assures" the "effectiveness" of
the statute restricting their sale by "alerting" sellers of potential consequences).
If private action is consistent with the legislative purpose, it may
nevertheless be superfluous if there is a more efficient administrative means to
achieve the legislative purpose. See Jalowiecki, 182 N.J. Super. at 32-33
(private action may deter violations of an environmental statute, but summary
proceedings by the Department of Environmental Protection are more
effective); Jarrell, 223 N.J. at 309 ("proactive" enforcement of insurance
requirements for medical practitioners would not be served by a "reactive"
course of "wait[ing] for a complaint by an injured patient that may never be
filed"); Campione, 155 N.J. at 264 (allowing a private right of action regarding
casino-related statutes and regulations "could dislocate the intricate regulatory
structure governing a sensitive industry" and "introduce confusion where
uniformity is needed").
We are persuaded the overall purpose of CREAMMA, and specifically
N.J.S.A. 24:6I-51(b)(1) and -52(a)(1), would be served by a private right of
action against an employer or potential employer that discriminates against an
A-2715-23 27 employee or a candidate who tests positive for cannabinoid metabolite.
Because CREAMMA does not provide for administrative enforcement,
permitting a judicial remedy will not run afoul of or bypass any intricate
regulatory structure. See R.J. Gaydos, 168 N.J. at 280-81; see also Campione,
155 N.J. at 264. Moreover, since no administrative remedy was authorized by
statute, these anti-discrimination provisions would be meaningless and
unenforceable absent an individual's right to sue for a violation.
While not raised by the parties, for the sake of completeness, we address
N.J.S.A. 24:6I-55(a), titled "Limitations," which states: "The provisions of
[CREAMMA] concerning the development, regulation, and enforcement of
activities associated with personal use cannabis, as well as acts involving
personal use cannabis or cannabis items, shall not be construed . . . [t]o amend
or affect in any way any State or federal law pertaining to employment
matters." The legislative history does not address the intent behind this
provision. Read broadly, it may be construed as evincing the Legislature's
intent to preclude a private right of action for a violation of CREAMMA's anti -
discrimination provisions. However, statutory provisions are "not read . . . in
isolation; we instead consider 'them in context with related provisions so as to
give sense to the legislation as a whole.'" State v. Lopez-Carrera, 245 N.J.
596, 613 (2021) (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)).
A-2715-23 28 The remainder of N.J.S.A. 24:6I-55 clarifies CREAMMA shall not be
construed to: amend or affect State or federal law pertaining to landlord-
tenant matters; prohibit a federal grant recipient from prohibiting the
manufacture, transportation, delivery, possession, or use of cannabis items as
necessary to satisfy federal requirements for the grant; prohibit a federal
contractor or applicant from prohibiting the manufacture, transport,
distribution, delivery, possession, or use of cannabis items as necessary to
comply with federal requirements of the contract; require a person to violate a
federal law; or exempt a person from a federal law or obstruct the enforcement
of a federal law. When CREAMMA was enacted, marijuana was an illegal
substance under federal law. Thus, considered in context, we are persuaded
this provision addresses the Legislature's intent to curtail CREAMMA's
conflict with federal law or contractual requirements, and it does not foreclose
a private right of action to enforce its anti-discrimination provisions. This
interpretation harmonizes the legislation as a whole, consistent with its express
purpose.
Having considered this guiding landscape of caselaw, we conclude the
Legislature intended CREAMMA to provide a private right of action to
enforce its anti-discrimination provisions embodied in N.J.S.A. 24:6I-51(b)
A-2715-23 29 and -52(a).3 We therefore reverse the court's order dismissing count one of the
complaint and remand for further proceedings. On remand, defendant is not
precluded from renewing its motion to dismiss the complaint, and our opinion
should not be construed to predetermine whether plaintiff alleged sufficient
facts to establish a violation of CREAMMA.
B.
Plaintiff argues the trial court erred by dismissing her common law
claim under Pierce, 84 N.J. at 65. She asserts her case is one of wrongful
termination because defendant offered her a job, and she accepted, creating "an
employment contract . . . which was rescinded/breached in violation of public
policy." Alternatively, she urges us to extend Pierce's holding to failure to hire
cases, because defendant's actions involved "refusing to hire a protected class
of individuals." Plaintiff asserts "the public policy at issue," non-
discrimination against cannabis users, "extend[s] to the pre-hire context," and
thus Pierce should be applied to allow her to sue defendant under the common
law.
3 We acknowledge the Third Circuit reached a contrary conclusion in Zanetich v. Wal-Mart Stores East, Inc., 123 F.4th 128, 136, 147 (3rd Cir. 2024). Although we "often look to the decisions of federal courts for guidance," our courts "are not bound by their decisions in respect of our own state law." Becker v. Baron Bros., 138 N.J. 145, 165 (1994). We also note Zanetich exclusively examined N.J.S.A. 24:6I-52(a)(1), not N.J.S.A. 24:6I-51, in deciding this issue.
A-2715-23 30 Pierce permits an employee to bring a cause of action "for wrongful
discharge when the discharge is contrary to a clear mandate of public policy."
Id. at 72. In recognizing this type of claim, the Court struck a balance by
giving employees the security to "exercise their rights in accordance with a
clear mandate of public policy" without fear of losing their jobs, while also
affording employers the ability to discharge employees at will for any reason
other than such an exercise of rights. Id. at 73.
Under Pierce, a wrongfully discharged employee "may maintain a cause
of action in contract or tort or both," with a contract action being "predicated
on the breach of an implied provision that an employer will not discharge an
employee for refusing to perform an act that violates a clear mandate of public
policy." Id. at 72. The "sources of public policy" that may support an
employee's cause of action "include legislation; administrative rules,
regulations or decisions; and judicial decisions." Ibid. "Absent legislation, the
judiciary must define the cause of action in case-by-case determinations."
Ibid.
The scope of Pierce is limited to wrongful discharge actions brought by
employees. See MacDougall v. Weichert, 144 N.J. 380, 388-90 (1996)
(explaining Pierce is limited to an employer-employee relationship); Sabatino
v. St. Aloysius Par., 288 N.J. Super. 233, 240 (App. Div. 1996) (declining to
A-2715-23 31 extend Pierce "to failure to hire or promote situations"); Conoshenti v. Pub.
Serv. Elec. & Gas Co., 364 F.3d 135, 149 (3d Cir. 2004) (noting "[t]he Pierce
doctrine is about wrongful discharges").
Plaintiff's complaint alleges a failure to hire, not a wrongful discharge,
and, therefore, the trial court correctly dismissed it as failing to state a claim
under Pierce. As an intermediate appellate court, we are bound by the
contours of the Supreme Court's holdings and therefore decline to expand
Pierce beyond the employer-employee relationship.
C.
Plaintiff also contends the trial court erred by denying her motion to
amend the complaint to add claims for negligence and invasion of privacy.
Regarding the negligence claims, she asserts that even if CREAMMA did not
create a private right of action, it "created a duty of employers toward job
applicants in how it conducts pre-employment drug testing," and defendant
"violated that duty by failing to follow those standards." She further asserts
defendant's conduct resulted in a violation of her privacy, because she
"submitted to a drug test under false pretenses, reasonably assuming that
[d]efendant would comply with the law if she did so."
Motions for leave to amend pleadings should be "'granted liberally,' even
if the ultimate merits of the amendment are uncertain." Prime Acct. Dep't v.
A-2715-23 32 Twp. of Carney's Point, 212 N.J. 493, 511 (2013) (quoting Kernan v. One
Wash. Park Urb. Renewal Assocs., 154 N.J. 437, 456 (1998)). The decision is
"a matter addressed to the court's sound discretion." Johnson v. Glassman, 401
N.J. Super. 222, 247 (App. Div. 2008).
However, "[o]ne exception to that rule arises when the amendment
would be 'futile,' because 'the amended claim will nonetheless fail and, hence,
allowing the amendment would be a useless endeavor.'" Prime, 212 N.J. at
511 (quoting Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006)).
Courts may deny leave to amend "when the newly asserted claim is not
sustainable as a matter of law," since there is "no point to permitting the filing
of an amended pleading when a subsequent motion to dismiss must be
granted." Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 256-57
(App. Div. 1997) (quoting Mustilli v. Mustilli, 287 N.J. Super. 605, 607 (Ch.
Div. 1995)).
The record reflects the trial court denied the motion to amend because it
found plaintiff's negligence and invasion of privacy claims were "just a
renaming of" her CREAMMA claim. Given our reversal of the order
dismissing the CREAMMA claim, we are constrained to also reverse the
portion of the order denying amendment and remand for further proceedings.
Again, our holding should not be construed to predetermine whether the
A-2715-23 33 complaint alleges sufficient facts to state a claim for negligence or invasion of
privacy.
D.
Plaintiff contends the trial court erred by finding no contract had been
formed between the parties and dismissing her breach of contract claim. She
asserts defendant made her a job offer, which she accepted, forming a contract
with the condition she would provide "consideration" by taking a drug test.
Plaintiff argues the consideration was not a condition precedent to formation,
as defendant contends, but to performance.
Plaintiff avers she satisfied the condition by "passing" the test as to all
substances considered illegal under New Jersey law. She argues defendant's
requiring additional consideration—a second drug test, at her expense, on
which she would test negative for cannabis—violated CREAMMA and formed
a proper basis for a breach of contract claim.
The court interpreted plaintiff's allegations to indicate "the consideration
may have been that . . . [plaintiff] take this drug test," and then defendant
"asked her [to] take a second drug test," but the complaint was unclear "what
the . . . purpose of that was. Other than [defendant] asked for as part of the
original consideration to take a second test." The court found the request for
the retest was "additional consideration," which defendant asked plaintiff "to
A-2715-23 34 undertake to complete the offer . . . of the employment contract." Because
plaintiff declined to take the second test, "the contract did not proceed , and,
thus, there was no breach of contract."
Plaintiff's complaint does not detail what, if any, communications the
parties had concerning the offer and conditions, and thus, it is unclear whether
the drug tests were a condition precedent to the formation of the contract or to
performance. Because the motion was brought under Rule 4:6-2(e), the court
is limited to consideration of the allegations in the complaint, which do not
shed any light on the reason defendant requested the second test. Accepting
plaintiff's allegations as true and affording her all reasonable factual
inferences, as we must at this stage, we are persuaded the court's dismissal of
the breach of contract claim was premature. We therefore reverse that order
and remand for further proceedings.
Affirmed in part; reversed and remanded in part. We do not retain
jurisdiction.
A-2715-23 35