First-impression ruling reshapes pre-employment drug testing across the state
New Jersey job seekers can now sue employers directly over a rescinded offer tied to a positive cannabis test.
That's the headline takeaway from a New Jersey Appellate Division ruling issued on May 26, 2026, in Darlene Sanders v. The Levari Group, LLC, doing business as First Choice Freezer. As a matter of first impression, the court found that the state's Cannabis Regulatory, Enforcement Assistance, and Market Modernization Act, or CREAMMA, gives applicants the right to sue employers who reject them because of cannabis use.
For HR teams in New Jersey, the practical effect is immediate.
The facts are simple enough. Sanders interviewed for a customer service role at First Choice Freezer on December 6 and 13, 2022. The company offered her the job. She accepted. As part of the standard hiring process, she took a drug test, which showed she had used cannabis within the past 30 days. Sanders said the use was recreational, that she had not used cannabis the day of the test, and that she was not under the influence when she applied.
In early January 2023, she contacted the company's HR department to ask about her start date. According to the decision, the company offered her a retest within a week, at her own expense. She did not have the money. The offer was then rescinded.
The trial court dismissed her CREAMMA claim, saying her remedy was through the Cannabis Regulatory Commission, not the courts. The Appellate Division saw it differently.
Working through the three-part Cort test for an implied private right of action, the panel found all three factors favored Sanders. Job applicants who test positive for cannabinoid metabolites are the exact class the law was meant to protect. The Legislature did not give the Cannabis Regulatory Commission authority to enforce the anti-discrimination provisions against ordinary employers. And without a private right to sue, the court said, the protections "would be meaningless and unenforceable."
The court also reversed dismissals on Sanders' negligence, invasion of privacy, and breach of contract claims, sending those back for further proceedings. The only loss for Sanders was her Pierce common law wrongful discharge claim. Pierce applies to wrongful discharge of existing employees, not to failure-to-hire situations, and the panel declined to extend it.
There's a federal wrinkle. The Third Circuit reached the opposite result in Zanetich v. Wal-Mart Stores East, Inc., 123 F.4th 128 (2024), finding no private right of action. The Appellate Division acknowledged the split but noted New Jersey courts are not bound by federal readings of state law. In state court, the Sanders ruling controls.
What does this mean for HR functions in New Jersey?
The routine practice of rescinding an offer after a positive cannabis test is now exposed to direct lawsuits. Applicants can pursue compensatory damages, lost past and future earnings, punitive damages, damages for emotional distress and pain and suffering, and attorneys' fees and costs. The statute still permits drug testing under defined circumstances, and it still allows employers to use test results when determining employment actions concerning current employees, including dismissal, suspension, demotion, or other disciplinary action. The federal contract and federal funding exception under N.J.S.A. 24:6I-51(b)(1) remains in place.
HR teams will want to revisit pre-employment drug testing protocols, applicant communications, offer letter language around contingencies, and any policies that key hiring decisions to cannabinoid metabolites alone. The case has been remanded, so a final merits ruling is still ahead. But the rule on private enforcement is set.
