Marijuana Industry Workers and the Federal Fair Labor Standards Act

 

Marijuana Industry Workers are Protected by the Federal Fair Labor Standards Act

The medical and recreational marijuana industry is one of the biggest and fastest growing new industries in many states, including here in Ohio. In Ohio, medical marijuana is legal.  The Marijuana Business Factbook, a market research resource for the marijuana industry, estimates that Ohio medical marijuana sales should top $80 million in 2019.  Until Congress repeals current federal law, the Controlled Substances Act of 1970 (“CSA”), marijuana is illegal at the federal level.  So, do cannabis industry workers get protection of the federal Fair Labor Standards Act (“FLSA”) while working in an industry that is federally illegal?  According to the United States Court of Appeals for the Tenth District the answer is, YES.  In Kenney v. Helix TCA, the court held that workers who work for a company whose business violates another federal law enjoy the FLSA’s protections.

Helix TCA classified there security guards as independent contractors.  As independent contractors, they were classified as exempt from receiving overtime pay. Kenney sued Helix TCA, on behalf of himself and other similarly situated security guards alleging they we actually employees (instead of independent contractors) and were entitled to overtime pay under the FLSA.  Helix TC challenged the lawsuit claiming that since federal law prohibits the growing, possession, and/or sale of marijuana, its industry could not be subjected to the FLSA’s federal wage laws.  The United States District Court for Colorado disagreed, finding that those employees were entitled to FLSA protection.  Helix TC appeared and the Tenth Circuit held that the purpose of the FLSA was to protect workers even if the product being produced was illegal at the federal level.  The Court went on to state that the FLSA has been in existence since 1938 and been amended by Congress numerous times both before and after the CSA was enacted. If Congress wanted to carve out an exception for marijuana workers, they had many opportunities to do so and did not.

For Ohio marijuana industry workers this means they are protected by both the FLSA and the Ohio Wage Act, O.R.C. § 4111.  To be “blunt” employers in the Ohio Medical Marijuana Industry have “jointly” follow the follow the FLSA and the Ohio Wage Act.

-Bob DeRose

October 31st, 2019



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