Labor and Employment

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California’s Medicinal and Adult-Use Cannabis Regulation and Safety Act (“MAUCRSA”) requires commercial cannabis entities to obtain a license from California’s Department of Cannabis Control (“DCC”) to cultivate, distribute, transport, store, manufacture, process, and sell cannabis in the state of California. Since its enactment, MAUCRSA required licensees with 20 or more employees to enter into Labor Peace Agreements (“LPAs”) with “bona fide” labor organizations to receive and renew a license from the DCC, as previously outlined here. LPAs require commercial cannabis licensees and labor organizations to agree to not engage in conduct that would disrupt or interfere with the other’s dealings. In 2022, AB 195 reduced the employee threshold requirement by half, effective July 1, 2024. That means, effective July 1, 2024, all license applicants with 10 or more employees must comply with the LPA requirement to obtain a license, and all current licensees with 10 or more employees must so comply to renew their license. Continue Reading July 1 Deadline Looms for Cannabis Operators to Maintain and Renew Their Licenses by Entering into Labor Peace Agreements

On April 26, 2024, Ctrl Alt Destroy, Inc. (“CAD”), a California Corporation and cannabis licensee filed a lawsuit against Nicole Elliott in her official capacity as Director of the State of California’s Department of Cannabis Control (“DCC”) and Rob Bonta in his official capacity as Attorney General of the State of California, seeking declaratory and injunctive relief alleging that California’s Medicinal and Adult-Use Cannabis Regulation and Safety Act (“MAUCRSA”) is unconstitutional under the Fifth and Fourteenth Amendments to the US Constitution and is preempted by the National Labor Relations Act (“NLRA”).Continue Reading Cannabis Operator Challenges California State Statute and Regulations Requiring Labor Peace Agreements

On October 7, 2023, Governor Gavin Newsom signed SB 700 into law, amending the California Fair Employment and Housing Act (FEHA). SB 700, effective January 1, 2024, expressly prohibits employers from requesting information from job applicants relating to their prior cannabis use.Continue Reading High Protections on Information Relating to Employees’ Cannabis Use

Last summer, the Washington D.C. Council unanimously passed a bill that prohibits employers from refusing to hire, terminating, suspending, failing to promote, demote, or otherwise penalizing any employee who uses marijuana, even if they fail a drug test. In October 2022, the bill, referred to as the D.C. Marijuana Protections Amendment Act of 2022, was signed by Mayor Bowser. The law goes into effect on or after July 13, 2023.[1] Continue Reading On the Horizon: Broad Employment Protections for Marijuana Users in the District of Columbia

Virtually all California employers with five or more employees are covered by the Fair Employment and Housing Act (FEHA), the state’s most noteworthy civil rights law. FEHA protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment free from discrimination by establishing a comprehensive scheme to combat employment discrimination.Continue Reading California Expands FEHA to Include Off The Job Cannabis Use

In January 2020, Illinois legalized the use of recreational marijuana through the Cannabis Regulation and Tax Act (“the Act”).  Two months later, many employees began working remotely because of the pandemic.  Today, work-from-home continues to blur the lines between “work” and “home” in countless ways, and employee drug policies are no exception.  The new world of remote work has left many employers wondering what to do with their drug policies now that cannabis is legal and their employees are remote or hybrid.  Can an employer lawfully prevent their employees from using cannabis while working from home?
Continue Reading What Do I Do With My Workplace Drug Policy Now That Cannabis Is Legal in Illinois and My Employees Are Remote?

The end of 2020 was not the end of the California Legislature’s focus on employment-related legislation.  Just two months into the new year, the Legislature has already introduced several bills addressing the workplace that could impact employers who still may be implementing coronavirus-related legislation.  This article discusses two such bills on the horizon that employers will want to follow as they work their way through the Legislature.
Continue Reading California Legislative Update: Employment-Related Bills on the Horizon

On January 25, 2021, the NLRB Division of Advice (“the Division”) released a memo that may indicate a change in the way workers engaged in cannabis activities are covered under federal labor law. Under the NLRA, the right to form and join a union is limited to employees. Agricultural laborers do not have that right under federal law. Despite the fact that many workers in the cannabis industry are often involved in the cultivation and harvesting of a crop, they have typically been considered employees rather than agricultural laborers under the National Labor Relations Act (“NLRA” or “the Act”). This recently released advice memo (available here) reverses that interpretation.
Continue Reading NLRB’s Division of Advice Determines Certain Workers in the Cannabis Industry Are Exempt From Federal Labor Law

When it comes to whether unions have a right to enter an employer’s premises over the employer’s objections, California’s law is the polar opposite of the National Labor Relations Act (NLRA) and the law in most other states.  In California, unions generally have special access rights that nonlabor parties do not have.  Unions are given preferential treatment because of the state’s union-friendly public policies.  For example, under Assembly Bill 1291 (AB 1291) (AB 1291) and California Business and Professions Code Section 26001(x), any company engaged in the cultivation, packaging, distribution or sale of cannabis products cannot be licensed unless it agrees to enter into a labor peace agreement (LPA) with a union.  By statute, an LPA must, at minimum, (a) require the company not to “disrupt” the ability of unions to communicate with and to organize employees, and (b) grant workplace access to union organizers.  Likewise, under the California Agricultural Labor Relations Board (ALRB)’s access regulations – which covers agricultural workers engaged in the cultivation of cannabis – agricultural employers are required to provide union organizers with access to their property to communicate with employees and engage in union organizing efforts for up to 120 days in a calendar year.[1]
Continue Reading SCOTUS to Consider Whether California Unconstitutionally “Takes” Private Property When It Compels Agricultural Employers to Grant Union Access to Private Property

Unions have long sought to avoid the NLRB’s election process, relying instead upon so-called “neutrality” agreements to obtain initial recognition by employers and legally enforceable rights to represent and bargain on behalf of previously unrepresented employees.  Although truly neutral pre-recognition “neutrality agreements,” i.e. those calling for an employer to be neutral on the subject of unionization and little more, are lawful, many such agreements go beyond mere neutrality and venture into actual employer support of organizing.  This may render such agreements unlawful under the National Labor Relations Act (NLRA or Act) because they interfere with employees’ rights under the Act.  Indeed, Section 8(a)(2) of the Act declares it impermissible for an employer to support a union’s organizing efforts.  Likewise, Section 8(b)(1)(A) of the Act makes it unlawful for a union to receive such support.
Continue Reading Neutrality and Labor Peace Agreements – When Its Unlawful for an Employer to Be “Too Neutral” as to Union Organizing Under the NLRA