A recent employment case has emerged whereby legal action against Prince Telecom was pursued for its alleged discrimination by the state of New Jersey. Prince Telecom LLC has been a prominent provider of installation and fulfillment services for cable and telecommunications companies since 1986.
New Jersey’s Attorney General Matthew J. Platkin claims that Prince Telecom has violated state law by rescinding a job offer to a medical cannabis patient who tested positive for THC. The individual had informed the company of his medical cannabis status and mentioned that any test conducted on him would come back positive for THC, as he used medical cannabis for a health condition. The applicant was aware that he may have certain employment protections under State law, yet he wasn’t entirely familiar with them. Following a second positive drug test result, which was requested by the company’s Human Resources Department after a first positive test was returned, Prince Telecom halted communication and ultimately refused to hire the applicant.
The New Jersey Compassionate Use Medical Marijuana Act (“CUMMA”) mandates that employers accommodate an employee’s legal use of medical cannabis outside of the workplace. The statute clearly outlines that an employer is prohibited from taking any “adverse employment action” against a medical cannabis patient solely because of their status as such. Adverse employment actions can include any of the following: refusing to hire someone; terminating their employment; forcing them to retire; as well as discriminating against them based on compensation or any terms, conditions, or privileges of employment.
Although Prince Telecom argued that no reasonable accommodation would be possible for the applicant due to the safety-sensitive nature of the job, the New Jersey Division on Civil Rights (“DCR”) found probable cause to conclude that Prince Telecom nonetheless violated State Law anti-discrimination protections under New Jersey’s Law Against Discrimination (“LAD”). The DCR is the state agency responsible for enforcing New Jersey’s civil rights laws.
In conjunction with LAD, CUMMA protects medical cannabis patients from employment discrimination. These laws are implemented to ensure that people are not treated differently because of their status as medical cannabis registrants with the New Jersey Cannabis Regulatory Commission, the state government agency that is responsible for the licensing and regulation of the sale of medicinal and recreational cannabis products in New Jersey.
In this case, it is evident that the employer unlawfully discriminated on the basis of the applicant’s disability and treatment for this disability through his usage of medical cannabis.
Prior to pursuing the case at trial, both the applicant and Prince Telecom will have the opportunity for conciliation. Both parties can use this opportunity to settle this issue voluntarily, without the need for litigation.
In the case of Antonucci v. Curvature Newco, Inc., the New Jersey Superior Court, Appellate Division decided that federal law permits provisions in employment contracts that mandate the arbitration of LAD claims, despite state amendments that banned mandatory arbitration provision in employment agreements. After the Plaintiff Mr. Antonucci, was asked to perform a cannabis test, he was terminated from his employment because of a positive result. His employer, Curvature Newco, Inc., included an arbitration clause in his employment agreement and sought to impose the agreement to arbitrate when Antonucci sued in the Superior Court for discrimination and wrongful termination under the LAD. On appeal to the New Jersey Superior Court, Appellate Division, Antonucci sought to have the arbitration agreement nullified. He claimed the trial level court had erred when it found that he agreed to the arbitration agreement as well as decided that the LAD’s ban on arbitration of discrimination claims was overridden by the Federal Arbitration Act (“FAA”). Mr. Antonucci asserted that he had a “procedural” right to be heard before a jury at the trial Court, and claimed to be protected by an amendment made to the LAD in 2019. This amendment guaranteed that “any employment contract that waives any substantive or procedural right or remedy related to a claim of discrimination, retaliation, or harassment is considered against public policy and unenforceable”. Ultimately, Mr. Antonucci’s appeal was denied, and the Appellate Division upheld the trial court’s order to compel arbitration. The Appellate Court held that employee discrimination claims that fall within the LAD and contained arbitration agreements were required to be resolved through private arbitration.
As is apparent in New Jersey cases where there are allegations of discrimination and wrongful termination brought by job applicants and employees against employers, arbitration clauses remain a proscribed process to resolve these disputes.
Alternative dispute resolution (ADR) can be an effective process for parties that seek efficient and private resolution of their dispute. A potential publicized court decision that results in a finding of discriminatory conduct by an employer could result in a company’s image becoming tarnished.
It is imperative that employers in all sectors, including those that contain safety sensitive positions, consider the complex current legal landscape of the use of medical cannabis. These types of employers ought to know the risks associated with taking adverse action against medicinal cannabis using job applicants who return a positive test result. Employers are encouraged to update drug testing policies to adhere with state laws and regulations and ensure that all staff and management understand the very serious implications of non compliance.
(Giulia Caracciolo is a second-year law student and summer student for CansultEd. CansultEd is an alternative dispute resolution company that operates exclusively in the US cannabis space.)