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Fight over Wages and PPE Continues for Cannabis Workers

| Jul 19, 2021 | Firm News |

In April of 2021, a class of workers filed suit in the U.S. District Court for the Northern District of Illinois over wages that they claimed that they claimed were owed to them by Cresco Labs Inc., an Illinois-based company that cultivates and dispenses medical and recreational cannabis products in nine states and Canada.

The complaint alleged that workers in manufacturing and processing facilities were forced to spend 12 to 16 minutes undergoing a health screening and then putting on protective equipment prior to the start of their shift, and 3-5 minutes removing equipment after their shift, with Cresco failing to pay their employees for that time, including the time it takes to put the gear back on in between shifts meaning that, functionally, they weren’t getting required amounts of meal times either (I’d note that the named plaintiffs are ones working at a Cresco facility in Massachusetts, but the class in the case actually includes any similarly situated employees in the U.S. or working for the Cresco entity in Canada).

Under the Federal Fair Labor Standards Act (FLSA), the Complaint alleges that Cresco failed to pay their employees for time that they should have been rightfully “on the clock” working for the company, and for the overtime premiums caused by the additional work time on top of their normal 40 hour week. The employees had no ability to shorten this time period, as they had to undergo the health screening and travel from the screenings to locker rooms before putting the PPE on, and the lengths of time they are contemplating weren’t just a matter of a couple of minutes here and there (what would be considered a de minimus or so small as to be harmless amount of time under the law).

A small twist in this otherwise straightforward case is the argument by the Plaintiffs that, in addition to FLSA argument, the class also claimed that Cresco had committed a contract violation in agreeing to hire them for a certain hourly rate and then failing to pay them for the amount of hours that they were working, resulting in an unjust enrichment of Cresco. This specific claim resulted in a Motion to Dismiss the Contract claim in June from Cresco, who argued that the employees did not have a written contract, and that description of the employees’ arrangement in the Complaint did not provide enough information to be actionable. In fact, Cresco argued, the plaintiffs were just describing standard at-will employees, a circumstance that is characterized generally as a lack of an employment contract between the company and the employees.

The Plaintiffs recently responded to the Motion to Dismiss the contract claim, pushing back against the argument that they failed to establish the existence of a valid contract. Even if this particular Motion by Cresco is successful however, its difficult to see how it can get out of the FLSA claims. According to the pleadings, they formally gave employees a five minute “grace period” prior to the start of their shift to put on their protective gear after the health screenings, and if the employees can prove that it was impossible to do that in less than ten minutes then Cresco should very much have been paying them for that additional time.

Attorney Travis Dunn