in Newswire Published on September 7, 2022

Walmart, Sam’s Club Illegally Refused New Jersey Job Applicant Based on Positive Marijuana Test, Lawsuit Says [DISMISSED]

Last Updated on June 23, 2023

Zanetich v. Wal-Mart Stores East, Inc. et al.

Filed: September 2, 2022 ◆§ 1:22-cv-05387

Walmart and Sam’s Club have unlawfully denied employment to New Jersey residents who tested positive for marijuana in a pre-employment drug test, a lawsuit says.

Defendant(s)

Walmart, Inc. Wal-Mart Stores East, Inc. Sam’s East, Inc. Sam's Club Fulfillment Center

Law(s)

New Jersey Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization Act

State(s)

New Jersey

June 23, 2023 – Walmart, Sam’s Club Positive Marijuana Test Lawsuit Dismissed

The proposed class action detailed on this page was dismissed on May 24, 2023.

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In a one-page order, U.S. District Judge Christine P. O’Hearn granted the retailers’ motion to dismiss after the court was the first to rule that there is no implied private right of action under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA). Put differently, the court found that CREAMMA does not allow individuals to sue under the state law.

“The express language of CREAMMA is less than helpful,” the judge wrote in a 21-page opinion. “On one hand, [the employment provision] explicitly prohibits employers from taking certain adverse actions on the basis of an individual’s use of marijuana … On the other, however, the New Jersey Legislature did not state how this provision could be enforced, by whom, and what, if any, remedies would be available.”

Upon further analysis of the Legislature’s intentions, Judge O’Hearn determined that the ability to file a claim under CREAMMA falls solely to the agency in charge of handling the enforcement of the statute, the Cannabis Regulatory Commission (CRC).

“The Court recognizes that its decision leaves Plaintiff without a remedy and essentially renders the language of the employment provision meaningless,” the judge wrote. “Yet, that is the outcome dictated by the law. It is not the function of the Court to re-write incomplete legislation or create remedies for a statutory violation where the Legislature did not.”

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Walmart and Sam’s Club face a proposed class action in New Jersey that claims the retailers have unlawfully denied employment to residents who tested positive for marijuana in a pre-employment drug test.

The eight-page lawsuit alleges the defendants have violated the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), a state law that, among other things, prohibits an employer from taking adverse action against a worker “solely due to the presence of cannabinoid metabolites” in their body.

Per the case, Walmart and Sam’s Club’s denial of employment to individuals based on positive test results for marijuana constitutes an unlawful adverse action in violation of the New Jersey CREAMMA.

The plaintiff says he applied for a position with the defendants’ asset protection department at one of their New Jersey facilities in late January 2022 and was offered the job, contingent on the results of a drug test. According to the complaint, the third party who performed the drug test informed the plaintiff in February that he tested positive for marijuana, and the defendants thereafter rescinded the man’s job offer.

The plaintiff says that upon inquiring with the retailers’ human resources department, he was informed that his job offer was rescinded due to the positive drug test.

According to the suit, the retailers’ drug and alcohol policy stipulates that “any applicant or associate who tests positive for illegal drug use may be ineligible for employment.” The lawsuit relays that Walmart and Sam’s Club consider marijuana to be an illegal drug and have therefore subjected job applicants to adverse action based on positive test results.

“As a result of Defendants’ Policy, Named Plaintiff and Class Plaintiffs, all of whom have faced adverse employment actions because they tested positive for marijuana, have been harmed,” the complaint alleges.

The lawsuit looks to represent anyone who, on or after February 22, 2021, was denied employment by Walmart or Sam’s Club in New Jersey, or subjected to any other adverse employment action, because they tested positive for marijuana in a pre-employment drug screen.

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