Cannabis

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While many states have legalized medical and recreational marijuana, marijuana remains an illegal controlled substance under federal law. As we have previously discussed, this has created a conundrum of sorts for employers who want to maintain a drug free workplace. In New York State, the landscape for employers has just gotten more challenging.

Medical marijuana has been legalized in the state since 2014. Governor Cuomo has since announced legalized recreational use may soon follow. Additionally, in New York City, employers are prohibited, with certain exceptions, from testing job applicants for marijuana. Employers can, however, test current employees.

Despite these legislative initiatives, a question still remains: What happens if an employee tests positive at work, but has a prescription for medical marijuana? A recent New York appellate court decision warns employers should proceed with caution.…

Continue Reading The Cannabis Conundrum: A Warning For Employers

JOIN US: TUESDAY, JULY 21, 2020 | 12:30PM EST

Four months ago, the Dow was close to 30,000, employment rates were at historic highs, the coronavirus was still “novel,” and millions had not yet taken to the streets in global protests against police brutality and racial inequality. The workplace we now return to exists in…

JOIN US: Tuesday, March 17, 2020 at 12:30 PM EST

Employers are in uncharted territory with the COVID-19 pandemic, which has created complicated employment issues that continue to evolve by the hour. Join Kelley Drye’s Labor and Employment co-chairs Barbara Hoey and Mark Konkel as they share practical advice for employers looking to keep employees…

As federal, state and local governments continue to develop their responses to the COVID-19 outbreak, employers may find themselves in uncharted territory as to how to deal with emerging employee issues.

There are three overriding rules that all employers should remember:

  1. Think safety first. Keeping those employees who are infected or at risk of infection at home to ensure that the rest of the workforce is safe should be the number one priority.
  2. Think about how you can keep your business going.  Make sure your work-from-home policies and technology are up to date, and remind employees how to use them.
  3. Avoid stereotypes. Do not allow employees to assume that people of certain ethnicities are at a higher risk than others. If you become aware of any discrimination or harassment—stop it immediately.

Below are some general answers to questions our clients have been asking.  However, please be aware that this is a very fact-specific and complex topic; COVID-19 related employment issues are evolving by the hour. Employers are cautioned to stay abreast of federal, state, and local government advisories, and to consult legal counsel before making employment decisions or changing policy.…

Continue Reading Managing Your Workforce During COVID-19

With the arrival of 2019 novel coronavirus (“COVID-19”) to the United States, employers should begin thinking about strategies to mitigate business interruptions, ensure employee safety, and avoid unnecessary litigation.

Know Your Resources

Employers should continue to monitor reliable guidance provided by the U.S. Centers for Disease Control and Prevention (“CDC”) and local public health agencies. Understanding how COVID-19 is transmitted and what steps can be taken to protect diagnosed or exposed employees is essential to dispelling employee fears. Employers can educate employees on prevention and symptoms and should be prepared to answer employee concerns regarding workplace safety. The following are guides which may be helpful to employers:

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Continue Reading Employer Survival Kit: Coronavirus Edition

Partner Matt Luzadder was quoted in Bloomberg Law’s February 18, 2020, article, “Unions Elbow Into Pot Industry With State-Backed ‘Peace’ Deals.”

The cannabis industry is estimated to grow to $30 billion in sales by 2025. Accompanying that estimate is the expectation of a significant expansion in labor force across all states that have legalized…

Last week, workers at Cresco Labs, one of Illinois’ largest cannabis companies, voted to join the Local 881 chapter of the United Food and Commercial Workers (UFCW).  The vote, conducted by the National Labor Relations Board just two weeks after adult recreational-use sales began in the state, is the first by Illinois cannabis workers.

Cresco currently employs around 130 employees, but the vote will affect only about 100 of those workers.  Because Cresco’s cultivation employees are already covered under federal labor laws for agricultural workers, only non-cultivation personnel are eligible to join the bargaining unit, such as those handling packaging, transportation, extraction and infusion, and front-end staff.

Cresco Labs has also drawn the attention of major politicians in Illinois and across the country. Democratic presidential candidate Senator Bernie Sanders, for example, mentioned the Cresco Labs workers in a tweet last week, encouraging Cresco employees to vote for unionization and vowing to help double union membership across the country should he get elected as president.…

Continue Reading Workers at Illinois-based Cannabis Company Unionize

In June 2019, the Illinois’ Cannabis Regulation and Tax Act (HR1438) (“Cannabis Act”) was signed into law, legalizing the use and possession of recreational cannabis for adults age 21 or older beginning January 1, 2020.  In a previous Labor Days blog post, we discussed the likely impact of this law on employers in Illinois.  In short, the Cannabis Act (1) permits employers to establish non-discriminatory, “reasonable zero tolerance or drug free workplace policies” that prohibit employees from using or being under the influence of cannabis at work, (2) allows employers to discipline employees for using or being under the influence of cannabis at work and for other violations of these “reasonable zero tolerance or drug free workplace policies,” and (3) insulates employers against liability for taking the aforementioned actions, as long as there existed a good faith basis for the employer to believe that the disciplined employee was under the influence of cannabis.  Cannabis Act at § 10-50.

Despite these provisions, the Cannabis Act, as originally enacted, left employers with several unanswered questions.  One of the key questions was whether employers would face liability for adverse employment actions based solely on a positive marijuana test, including refusing to hire a job applicant who tests positive for marijuana use.  The challenge with testing employees and prospective employees for marijuana use is that under Illinois’s Right to Privacy in the Workplace Act, an employer may not discriminate against an individual who uses “lawful products off the premises of the employer during nonworking and non-call hours.”  820 ILCS 55/5(a).  Adding to the confusion is the fact that the Right to Privacy in the Workplace Act referred back to the Cannabis Act’s provisions allowing employers to enforce reasonable drug-free workplace provisions.…

Continue Reading Illinois Cannabis Law, Amended: What Employers Should Know

So imagine that your biggest pothead friend from college has opened up a cannabis dispensary that sells weed for recreational use. Your old pal would be selling something that remains utterly unlawful under federal law, the recent and sweeping changes to state law notwithstanding. But two wrongs don’t make a right, according to the Tenth Circuit Court of Appeals:  if you’re going to sell something that federal law treats just like heroin, you’d at least better comply with federal wage and hour laws. Yes, cannabis sellers: thou shalt not rip off your employees for wages, even when they’re doing something illegal under federal law.

In its recent decision in Robert Kenney v. Helix TCS, Inc. (September 20, 2019), the Tenth Circuit affirmed the notion that an employer does not escape its responsibilities under federal law by virtue of its violations of other federal laws. Ergo:  a cannabis company cannot deem its employees exempt from the protections of the Fair Labor Standards Act (“FLSA”) solely on the basis that their job functions violate the Controlled Substances Act (“CSA”).…

Continue Reading Federal Wage Laws Protect Cannabis Workers? Yes, They Do

Please join Kelley Drye’s Labor and Employment team for a virtual WORKing Lunch, a webinar series focused on bringing you the latest trends and developments in workplace law. If you or a colleague are interested in receiving an invitation to any of the webinars, please contact marketing@kelleydrye.com.

This webinar series is designed to provide in-house counsel, management and HR professionals with trends and developments related to workplace law. We can provide CLE, SHRM and HRCI credit if desired.

The “Year of the Woman” – Pay Equity and Gender Equality Legislation and Litigation
Date: Wednesday, September 25, 2019
Time: 12:30 pm ET | 11:30 am CT

With agency and legislative support, female employees are demanding pay equity, opportunity equality, and fair treatment for pregnant workers and new parents. New York is just the latest state to pass new pay equity legislation, and this trend will continue. We will discuss compliance with ever-changing legal requirements, as well as how to audit your business to identify and eliminate risk.…

Continue Reading WORKing Lunch: Kelley Dyre’s L&E Webinar Series