federal-state law conflict

Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana.

Our weekly review starts in Georgia, where the governor is expected to sign a medical marijuana reform bill into law.  The law will allow grow houses and production facilities in the state, which will be heavily

Seyfarth Synopsis: The Tenth Circuit is set to decide whether workers in Colorado’s legalized marijuana industry are entitled to wage and hour protections under the FLSA. 

The Fair Labor Standards Act (FLSA) is the federal statute that provides wage and hour benefits to certain employees.  On the other hand, the Controlled Substances Act (CSA) is a federal statutes that categorizes marijuana as a Schedule I drug, meaning it is illegal under federal law.  Simple possession (let alone participating in its manufacture and distribution) is illegal, irrespective of state law to the contrary.  In the wake of widespread legalization of recreational marijuana in states across the country, a questions has arisen as to whether the FLSA was meant to provide wage and hour protections to employees of businesses engaged in the manufacture or distribution of Schedule I drugs under the CSA.

Background

This question has been put to the test in Kenney v. Helix TCS, Inc..  In Kenney, an employee of Helix, which provides armed security and transport services for businesses that grow and distribute marijuana, filed a putative collective action against Helix under the FLSA.  Kenney claims that Helix misclassified him, and similarly situated employees, as exempt and owes them overtime wages.  In response, Helix moved to dismiss the action, arguing that Kenney is not entitled to the protections of the FLSA because he is employed in the marijuana industry, which is entirely forbidden under the CSA.

The District Court denied Helix’s motion to dismiss.  The Court observed that Helix did not cite any cases in support of its theory, while Kenney relied on Greenwood v. Green Leave Lab LLC, which held that a plaintiff employed in a marijuana-testing laboratory under Oregon’s recreational marijuana law was entitled to protections under the FLSA, notwithstanding the CSA’s prohibition on marijuana.  Further, the Court held that businesses are not precluded from complying with federal laws because their business practices may violate other federal laws.  Nonetheless, the Court certified the ruling for immediate appeal to the Tenth Circuit with respect to the issue of whether Kenney is a covered employee under the FLSA. 
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Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana.

Massachusetts has promulgated final rules for cannabis regulation.  Look for TBT’s analysis of those new regulations shortly.  Until then, here’s some news coverage:

The Massachusetts Cannabis Control Commission has finalized the regulations for the state’s voter-approved recreational cannabis industry, four months before the program is set to go live, according to a WBUR report.

Massachusetts got closer Tuesday to making recreational marijuana sales in the state a reality this summer after the approval of final regulations for MJ companies.

Massachusetts just got a whole lot closer to welcoming its first-ever recreational marijuana shops, and it looks like they’ll be in business on schedule at the beginning of July.


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On January 22, 2018, Vermont Governor Phil Scott signed H. 511, allowing adults to possess recreational marijuana, making Vermont the first state in the nation to pass such a law in the legislature rather than at the ballot box. Vermont joins eight other states that have legalized recreational marijuana, as well as Washington D.C.  Nearly 30 states, including Vermont and Washington D.C., also have medical marijuana laws on the books. Polls show that most Americans favor legalizing marijuana at the national and local levels. An October 2017 Gallup poll found national support for legalization at the federal level to be at almost 64%.
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It’s only the second week of January, and it has already been a wild year in the cannabis industry.  First, legal sales of recreational marijuana started in California, and then Jeff Sessions rescinded the Cole Memorandum.  What next?  Here are seven stories to follow in 2018.
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On July 17, 2017, the Massachusetts Supreme Judicial Court (“SJC”), the highest state court in Massachusetts, held that an employer could be liable for disability discrimination by declining employment based on an individual’s off-duty medical marijuana use. This is a landmark decision, which has major implications for employers with drug testing programs and drug-free workplace policies.
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Attorney General Jeff Sessions is in the news for two reasons today: he’s testifying before the Senate Intelligence Committee on his possible links to Russia and a letter he wrote to Congress indicating his disapproval of the Rohrabacher-Farr Amendment has surfaced.

Last month we reported that Congress extended the Rohrabacher-Farr Amendment.  No sooner was this

Seyfarth Synopsis: In response to recent comments from senior members of the Trump Administration, lawmakers are exploring novel ways to protect the burgeoning marijuana industry (and the many jobs that it is projected to create) in states where it is legal, including legislation that would prevent state and local agencies from using state resources to assist federal enforcement efforts.
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