Cannabis Hiring, Now Actionable

New Jersey recognizes a private right of action under CREAMMA for workers refused employment over a positive cannabis test.

For the first time, a New Jersey appellate court has held that a worker may take an employer to court for refusing to hire her because she tested positive for cannabis. In Sanders v. The Levari Group, LLC, decided May 26, 2026, the Appellate Division concluded that the Cannabis Regulatory, Enforcement Assistance, and Market Modernization Act (CREAMMA) contains an implied private right of action, giving aggrieved applicants and employees a direct path to the Superior Court. The ruling answers a question of first impression and reshapes the risk calculus for every employer that drug tests in New Jersey.

The Dispute

Darlene Sanders interviewed twice for a customer service position with The Levari Group, doing business as First Choice Freezer. She was offered the job and accepted it, subject to a pre-employment drug screen. The test indicated cannabis use within the prior thirty days. Sanders acknowledged recreational use during that window but stated she was not under the influence when she applied and did not use cannabis on the day of the test. When she asked about her start date, the company offered her a second test, at her own expense, within a week. She could not afford the retest, and the offer was rescinded.

Sanders sued. She alleged that the refusal to hire her violated CREAMMA, contravened public policy under Pierce v. Ortho Pharmaceutical Corp., and supported claims for breach of contract, negligence, and invasion of privacy. The trial court dismissed the CREAMMA and Pierce counts, reasoning that her remedy lay with the Cannabis Regulatory Commission rather than the courts, and denied leave to add the negligence and privacy claims as futile.

The Court's Rationale

CREAMMA does not say, in so many words, that a worker may sue. The statute prohibits an employer from refusing to hire or otherwise penalizing a person solely because of the presence of cannabinoid metabolites from lawful use, but it is silent on how that prohibition is enforced. The Appellate Division therefore turned to the implied-right-of-action framework adopted from Cort v. Ash, which asks three questions: whether the plaintiff belongs to the class the statute was meant to protect, whether the Legislature intended to create a private remedy, and whether a private remedy fits the underlying legislative scheme.

On the first factor, the court found Sanders squarely within the protected class. The anti-discrimination provisions do not bar discrimination in the abstract; they specifically forbid employment decisions based on a positive cannabinoid test, so a job applicant whose offer was pulled for exactly that reason is precisely whom the Legislature sought to shield.

On the second factor, the court found rights-creating language and, critically, no administrative alternative. The Legislature directed the Cannabis Regulatory Commission to regulate the cannabis industry and to discipline license holders, but it gave the Commission no authority over an ordinary employer like First Choice Freezer, which holds no cannabis license. The court drew a pointed contrast with the Opportunity to Compete Act, amended the very same day, in which the Legislature expressly created an exclusive administrative penalty and expressly disclaimed any private cause of action. Where the Legislature wanted to foreclose private suits, the court observed, it knew how to say so and did so, and its silence in CREAMMA cut the other way.

On the third factor, the court reasoned that a private remedy was not merely consistent with CREAMMA's goals; it was essential to them. Because no agency was empowered to enforce the anti-discrimination provisions against non-licensee employers, the protections would be hollow without a right to sue. Reading the statute to give workers a courtroom remedy, the court concluded, was the only way to make the anti-discrimination guarantee meaningful. The panel also addressed CREAMMA's limitations clause, which preserves compliance with existing employment law and federal law, and read it narrowly as protecting against conflicts with federal law rather than as a bar to private enforcement.

The court, however, declined to stretch the common law. It affirmed the dismissal of the Pierce claim, holding that the wrongful-discharge doctrine is confined to the employer-employee relationship and does not extend to a refusal to hire. As an intermediate court, it would not expand Pierce beyond the boundaries the Supreme Court has drawn. It reinstated the breach-of-contract, negligence, and privacy claims for further proceedings, finding their dismissal premature at the pleading stage.

Where Workers' Compensation Fits In

The reasoning in Sanders did not arise in a vacuum. The court anchored its implied-remedy analysis in a line of employment cases, and workers' compensation law supplies one of its load-bearing precedents. In Lally v. Copygraphics, an employee alleged retaliatory discharge after filing a workers' compensation claim, in violation of the Workers' Compensation Act's anti-retaliation provisions. The Appellate Division held, and the Supreme Court affirmed, that the worker could elect a judicial remedy in the Superior Court rather than being confined to the administrative forum, because a common-law action for wrongful discharge would complement the policies underlying the compensation laws. The Supreme Court's framing in Lally, that the Legislature would have foreclosed a judicial cause of action expressly if it meant to, became a template the Sanders court applied directly to CREAMMA.

That lineage matters for comp practitioners. The same statutory architecture that protects an injured worker from retaliation for pursuing benefits, an administrative scheme paired with a judicially recognized remedy, now informs how courts read the cannabis anti-discrimination provisions. The two bodies of law share a common premise: a remedial, employee-protective statute should not be read so narrowly that its protections cannot be enforced. Sanders extends that premise from the comp context into the cannabis context, and the cross-pollination runs in both directions, since a court willing to imply remedies to vindicate worker protections is a court that reads the Workers' Compensation Act's own protective provisions generously.

The Impact for Workers

For workers refused employment or discharged because of cannabis use, Sanders changes the landscape in concrete ways. Until now, an applicant in Sanders's position had no realistic enforcement mechanism; the Cannabis Regulatory Commission would not act against an unlicensed employer, and no statute pointed to a courthouse. The practical result was a protection on paper only. After Sanders, a worker may file suit directly in the Superior Court and seek the full range of relief that employment plaintiffs ordinarily pursue, including back pay, lost earnings, emotional-distress damages, and counsel fees.

The decision reaches both refusals to hire and adverse actions against current employees, because the court rested its holding on both the consumer-and-licensee provision and the broader employment provision, the latter of which expressly covers discharge and other adverse action. A worker who is fired solely for a positive cannabinoid test, absent evidence of on-the-job impairment, now has a statutory claim with teeth. Employers retain the right to test and to act on a reasonable suspicion of workplace impairment, but a bare positive metabolite result, without more, is no longer a safe basis for an employment decision in New Jersey.

One limit deserves emphasis. The court declined to extend the common-law wrongful-discharge action to failure-to-hire situations, so applicants must rely on the statutory CREAMMA claim rather than on a freestanding public-policy tort. And because Sanders is an Appellate Division decision that diverges from a federal Third Circuit ruling reaching the opposite conclusion, the issue may yet draw review by the New Jersey Supreme Court. For now, though, the door to the courthouse is open, and employers, insurers, and human resources professionals should assume that cannabis-based hiring and firing decisions are subject to litigation.

Sources

Sanders v. The Levari Group, LLC, No. A-2715-23 (N.J. App. Div. May 26, 2026)

Cort v. Ash, 422 U.S. 66 (1975)

Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980)

Lally v. Copygraphics, 85 N.J. 668 (1981)

R.J. Gaydos Ins. Agency v. National Consumer Ins. Co., 168 N.J. 255 (2001)

Cannon v. University of Chicago, 441 U.S. 677 (1979)

Cannabis Regulatory, Enforcement Assistance, and Market Modernization Act, N.J.S.A. 24:6I-31 to -56

About the Author

Jon L. Gelman of Wayne, NJ is the author of NJ Workers' Compensation Law (West-Thomson-Reuters) and co-author of Modern Workers' Compensation Law (West-Thomson-Reuters).

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