Posted on Thursday, April 29th, 2021.
On February 22, 2021, as a companion to the “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act,” Governor Murphy also signed legislation “concerning certain criminal and civil justice reforms, particularly addressing the legal consequences associated with certain marijuana and hashish offenses.” Of particular interest to employers are the prohibitions this legislation places on employers’ ability to inquire into, and take action based on, specific marijuana-related criminal histories.
When Do These Prohibitions Take Effect?
The first day of the fifth month that follows February 22, 2021, that is, July 1, 2021.
What is Prohibited?
Employers in New Jersey will be prohibited from:
These prohibitions apply regardless of when the arrests, charges, convictions, or adjudication of delinquency occurred.
What are the Specified Offenses that are Off-Limits for Employers to Consider?
By citation, the following offenses:
Note: New Jersey law allows medical and adult recreational use “cannabis” grown, manufactured, and marketed within a highly regulated system of licensed producers and vendors. THC-bearing plants and products grown, manufactured, and marketed outside of this highly regulated system are termed “marijuana” and remain illegal.
Are There Any Exclusions?
Yes, but they are very limited. These prohibitions do not apply when the employment sought, or the position for which the applicant is being considered is in law enforcement, corrections, the judiciary, homeland security, or emergency management.
What Are the Penalties for a Violation?
The New Jersey Commissioner of Labor and Workforce Development can initiate a summary proceeding against an employer and seek the following civil penalties: $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation. These are the sole remedies available for employer violations.
Can an Employer Be Sued Over a Violation?
No. The statute expressly prohibits private suits over violations. Also, an alleged or actual violation of these prohibitions cannot be introduced as evidence in any legal proceeding except the summary proceeding brought by the New Jersey Commissioner of Labor and Workforce Development. Nor does this statute create or establish a standard or duty of care for employers with respect to any other law.
What Should an Employer Do?
An employer should immediately: