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5 Labor Rights Every Cannabis Worker Should Know

08 Dec 2016

Demand for cannabis workers is forecasted to grow substantially in the state of California with the passage of proposition 64, which legalizes recreational marijuana. In fact, by 2026 many experts have projected that the cannabis industry is expected to generate a whopping fifty billion dollars. Startups in the marijuana industry are quickly popping up everywhere, often times paying their employees in cash and illegally bypassing California’s tough labor laws regarding the payment of wages. Here are the top five labor rights every budtender, cultivator, trimmer, and dispensary worker should know about:

1. Right to Overtime Pay:

Much like other industries, cannabis workers in most scenarios have the same labor rights and are entitled to overtime pay. In California, nonexempt workers are entitled to overtime pay at 1.5 times their regular rate of pay for all work performed in excess of eight hours up to and including to 12 hours in a workday. Cannabis workers are also entitled to one and one half times their regular rate of pay for work performed in the first eight hours worked on the seventh consecutive day of work in a workweek. California’s employee friendly labor laws allow a second way for an employee to earn overtime at 1.5 times their regular rate of pay, employees can earn overtime for any work performed in excess of 40 hours in one workweek. Although most people already know about these basic rules regarding overtime, many do not know that non-exempt workers must be paid double their regular rate of pay for any work performed in excess of 12 hours in any workday and for all hours worked in excess of eight hours on the seventh consecutive day of work in a workweek. As most cannabis workers reading this article already know, it is very easy to rack up hours in this line of work, especially in light of the explosion of money and capital that is currently being infused as a direct result of prop 64. It is therefore even more critical that budtenders, growers, trimmers, and other cannabis employees keep track of their hours and crosscheck them against their paystubs.

2. Right to Accurate Paystubs:

Cannabis businesses by law must semimonthly or at the time of each payment of wages, furnish their employees with a paystub showing, among other things: gross wages earned, total hours worked by each employee (when based on hourly compensation), all deductions, net wages earned, the payment period, overtime hours and rate of pay, the employer’s name and address, etc. Pursuant to Labor Code section 226 an employee suffering as a result of a knowing and intentional failure by an employer to comply with the itemized written statement requirements is entitled to recover the greater of all actual damages or $50 for the initial pay period in which the violation occurs, and $100 per employee for each violation in a subsequent pay period, not exceeding an aggregate penalty of $4,000.00.

3. Right to Lunch Breaks and Rest Breaks:

With the press of business around the time of marijuana harvest many businesses force their employees to work tirelessly around the clock. Usually this means that those workers will skip lunch breaks and rest breaks just to complete all the tasks that they have been assigned for the day. Pursuant to the Labor Code, an employer must provide a thirty-minute lunch break (and relieve all duty during the lunch break) to any employee who works more than five hours in one day. A second meal period of the same duration must be provided for employees who have worked more than ten hours per day. Employers who fail to provide their employees with a lunch break, or force their employees to work through the lunch break must pay a penalty (meal period premium pay) consisting of 1 additional hour of pay for each day a lunch break is not taken. Similarly, employers must authorize and permit each employee to take a 10-minute rest break for each 4 hours of work performed. If an employer fails to provide an employee with a required rest break the employer must pay the employee 1 hour of additional pay for the missed break. This could mean that the employer is subjected to significant exposure if employees are regularly forced to skip out on required meal and rest periods.

4. Right to Prompt Payment of Wages Upon Termination:

One of the most frequent wage and employment law issues we have experienced are cannabis employers terminating their employees and either delaying final paychecks or withholding them entirely. The California legislature recognizes the impact of wage theft on working class individuals and has instituted waiting time penalties to prevent it. Pursuant to the Labor Code an employer who fires or discharges an employee must provide the employee with a final paycheck and pay all compensation owed to the employee on the employee’s last day of work. If the employer fails to provide the employee with the final paycheck on his or her last day of work, the employee’s wages continue as waiting time penalties until paid, for a maximum of 30 days. If the employee voluntarily quit and provided at least 72 hours of notice the employer must provide the employee with a final check on the employee’s last day of work or suffer the same consequences. In the event 72 hours of notice was not provided by the employee then the employer has another 72 hours from the time of notice to provide the final check.

5. Right to Inspect Wage Statements and other Employment Records:

The Labor Code also sets forth important employee inspection rights for employment records. For example, pursuant to Labor Code section 226, an employer must permit current and former employees the right to inspect or copy their wage statements (pay stubs) upon reasonable request. Employers therefore must respond to an oral or written request within 21 days or be subject to a $750 penalty. Similarly, Labor Code section 1198.5 governs an employee’s right to inspect and copy personnel records (files and records relating to an employee’s performance or any grievances relating to the employee). Employers must make personnel records available and provide a copy within 30 calendar days from the date the employer receives a written request from a current/former employee. If the employer does not comply, the penalty is $750, and the employee may also seek injunctive relief and request attorney fees and costs in a civil lawsuit. Finally, Labor Code Section 432 requires employers to provide employees and applicants copies of signed instrumentalities (employment contracts, applications, any documents signed) upon request.