On January 25, 2021, the National Labor Relations Board’s Division of Advice released an Advice Memo on the issue of whether certain cannabis workers were exempt from the National Labor Relations Act as agricultural workers. The Advice Memo noted at the outset that the “Board has not ruled on whether employees of a marijuana enterprise are agricultural laborers or statutory employees.” The difference in classification is important – the Board has jurisdiction over statutory employees but not agricultural laborers, which means the latter cannot seek redress from the NLRB for alleged labor law violations.

In determining whether a worker is an agricultural laborer, the Board, pursuant to an annual appropriations rider, looks to the broader definition of “agriculture” in the Fair Labor Standards Act, which includes the production of “horticultural commodities” as agricultural activity and, thus, exempt from the NLRB. In concluding that the workers at issue in the Advice Memo were exempt from the NLRA, the Division of Advice highlighted that the workers “perform a substantial amount of agricultural functions” within the meaning of the FLSA standard, including harvesting, pruning, and sorting of plants. Both of the employees used their hands rather than machines to perform their tasks, and were not involved in “transform[ing] the natural product from its raw state.”

The Division of Advice distinguished the facts before it from situations in two previous Advice Memos issued regarding marijuana facility employees. In one, the “processing assistants used machines that transformed the raw plant into retail products, whereas the two employees here handle the plants by hand and do not substantially transform them.” In the other, the functions were similar but the context was different, with the Division of Advice determining that the FLSA’s definition of “agriculture” was inapplicable because, unlike in the instant situation, the employees were not engaged in organizing activities as required by the appropriations rider.

The Advice Memo was limited to its facts and should not be read to mean that exempt cannabis or other agricultural workers are entitled to no protections. Indeed, some states have enacted statutes that protect the right of agricultural workers to organize. Importantly, Advice Memos are not binding on future Board determinations. And, given the Division of Advice wrote the memo before President Biden fired the NLRB General Counsel and the Deputy General Counsel, it remains to be seen whether a Biden Board will issue a decision that actually decides whether other cannabis workers who participate in the transformation of the product are agricultural workers or statutory employees.