The federal government continues to surprise us with its varied treatment of marijuana: this time  by federally recognizing marijuana workers’ rights. Specifically, the National Labor Relations Board (for the second time) is preparing to hear marijuana workers’ allegations against their New Jersey medical marijuana dispensary employer for retaliation, union-busting, and unfair working conditions. That hearing is currently set for this March.

If anything, the NLRB’s willingness to hear such cases tells us that the Feds acknowledge the legitimacy of the ever-developing and expanding marijuana industry. It also tells us that all marijuana employers need to be very careful regarding their employment policies and workplace procedures and be mindful of both state and federal employment laws and regulations.

But first, a very brief history and legal lesson surrounding current employment and labor laws.

The Taft-Hartley Act and the Landrum-Griffin Act, passed in 1947 and 1959, guarantee the rights of private employees to form and join unions to bargain collectively with employers for pay and for workplace rights and conditions. Employers are barred from joining these unions, they cannot exude any dominance over these unions, and employers certainly cannot engage in illegal union busting to prevent workers from banding together to collectively bargain. The National Labor Relations Act (NLRA) provides a legally protected right for private sector employees to strike for better wages, benefits, or working conditions, without threat of termination. The NLRB oversees investigating and remedying unfair labor practices, including union-busting. What’s union-busting? It’s a “range of activities undertaken to disrupt or prevent the formation of trade unions.”

This is not the first time that the NLRB has gotten involved in marijuana employer to employee relations. Back in 2013, for the first time ever, the NLRB was prepared to hear allegations of union-busting and unfair working conditions from workers of a Maine medical marijuana dispensary. When the NLRB agreed to hear the case brought by United Food and Commercial Workers International Union (which maintains a Medical Cannabis and Hemp Division) against Wellness Connection of Maine, the industry as a whole was left scratching its head regarding the decision since the Controlled Substances Act renders all marijuana businesses illegal under federal law. How can employees working at an “illegal enterprise,” seek redress under federal labor laws that technically should not apply? Do marijuana workers even qualify as “employees” under the NLRA?

These questions went unanswered for several months when the Maine case settled before the NLRB hearing. But in August 2014, the NLRB’s Office of General Counsel/Division of Advice released a memorandum detailing its recommendation to the regional NLRB to take up the Wellness Connection case even though marijuana is federally illegal. This memorandum also explained why marijuana workers are “employees” entitled to NLRA protections.

That NLRB memo provides that the NLRB need not decline exercising jurisdiction over medical marijuana due to the following:

  • The NLRB may exercise jurisdiction over any employer doing business in the country except those specifically made exempt by Congress.
  • The NLRB has authority to regulate the marijuana industry even where production and consumption are intended to be intrastate.
  • A medical marijuana industry-based labor dispute could have a substantial effect on interstate commerce because the medical marijuana industry is a large and growing interstate industry. Wellness Connection purchased enough out-of-state supplies to meet the NLRB’s non-retail jurisdictional standard and had enough revenue to meet the Board’s retail standard. Also labor disputes in the medical marijuana industry could interfere with the federal government’s regulation of the intrastate marijuana market.

The NLRA does not include protections for “agricultural laborers” but this memorandum made clear that marijuana workers (specifically, “processing assistants”) are statutory employees since they are more like manufacturers because they transform the cannabis products “from their raw and natural state” than they are like farm laborers.

It bears noting that this NLRB memo is neither law nor is it binding on the NLRB in any way. But it is a strongly persuasive guideline regarding the NLRB’s priorities when it comes to regulating medical marijuana employers. And though this memo is written in the context of medical marijuana, there is nothing to stop the NLRB from applying the same analyses to adult use (recreational) marijuana businesses. Consequently, marijuana employers need to take into account their employees’ now federally recognized rights to join unions, and they should institute and enforce workplace policies and procedures pass muster under the NLRA. Cannabis companies that ignore the NLRA are putting themselves at big risk of costly litigation and federal penalties.