MJBizMag February 2021 - 48

Limiting Your Liability
If companies are in a state where they
are required to sign a labor peace agreement,
Keselenko advises them to ensure
the agreement is only for the state they
are in and not a general pact that could
follow the business to other states.
Also, once unions establish themselves
at a company, businesses need to be
prepared to negotiate collective-bargaining
agreements. As the Have a Heart case
illustrates, the contract can be transferred
from one company owner to the next.
CLASSIFICATIONS ARE KEY
Besides unions, cannabis company owners
face the regular slew of employee-related
legal issues. Among the most prominent:
How a company classifies its employees.
That will determine how much they are
paid, the benefits they get, the rights they
have and other areas covered in contracts.
The classifications essentially boil
down to:
* Whether the employees are contract
workers who are paid hourly wages.
* Whether they get benefits and are
paid overtime.
* Whether they are staff who are paid
salaries.
If an employer misclassifies staffers
in a way that they made less money or
benefits than they should have, that
could spell legal trouble for the company.
" If (employees) are misclassified, they
could sue you for unpaid wages " said Michael
Freimann, an attorney specializing in
labor law at Greenspoon Marder in Denver.
Moreover, cannabis companies must
comply with a variety of other laws such
as the Americans with Disabilities Act as
well as those addressing racial discrimination
and sexual harassment.
STATE LAWS, REGULATIONS
States also have passed statutes and
regulations governing labor and
employment matters.
" When states have their own laws,
that can make it difficult for companies, "
said Rachel Gillette, chair of the
cannabis law practice at Greenspoon
Marder. As an example, she pointed
to Colorado, where
lawmakers passed the
Equal Pay for Equal
Work Act in 2019.
The law took effect
Doug
Diaz
this year. Among other
things, it requires a
company to tell its
employees about any
employment advancement
opportunities and
job openings, as well as
the pay range for those positions.
Cassia Furman, managing partner of
Vicente Sederberg's California Practice
Group, noted it's important for companies
to keep abreast of cannabis regulations
and general regulatory changes.
" People tend to be so focused on the
daily grind of keeping the operations
going that they may miss some really important
regulatory changes, " Furman said.
PANDEMIC RAISES NEW ISSUES
The COVID-19 pandemic has
complicated employer-employee
relations. For example, the Families
First COVID Response Act of 2020
mandated that companies give
employees time off if they fear working
while the coronavirus remains a publichealth
issue. But the legislation expired
Dec. 31, leaving its future uncertain.
As a result, attorneys said it's unclear
how much flexibility or time off a
business must provide. Attorneys also
noted their firms have seen upticks in
coronavirus-related employee litigation.
When it comes to vaccinations, for
example, several attorneys agreed that
strongly encouraging employees to get
vaccinated is a good way to proceed,
although mandating workers to get the
injection is also a legal option.
Doug Diaz, a labor and employment
attorney with Haddonfield, New Jerseybased
Archer & Greiner, recommends
making vaccinations voluntary while
strongly encouraging employees to get
the shot.
The Equal Employment Opportunity
Commission has noted it's legal for
48 Marijuana Business Magazine | February 2021
employers to mandate
workers get vaccinated,
but there are
limitations, including
health-related concerns
such as allergies or
severe anxiety.
Ian Meklinsky,
an attorney in Fox
Rothschild's labor and
employment department
in Princeton, New
Jersey, believes employers should require
employees to provide proof of vaccination.
The rationale: An employer can prove
that it's looking out for employees' wellbeing
by telling them to get the vaccine,
Meklinsky said. He also acknowledges
there should be accommodations,
although that creates another issue.
" The question becomes: What's the
reasonable accommodation? That's where
we're going to see a lot of pushback by
employees and confusion by employers, "
Meklinsky said. " Those are things
employers are going to have to work out. "
THE IMPORTANCE OF TRAINING
The best ways to protect your company
against employee-related lawsuits is to
hire legal counsel to help executives both
understand the law and draft policies to
guard against violations.
It's also important to have an
experienced human-resources staff who
can train employees. This is especially
true in the cannabis industry, where
the workforce skews younger and is less
experienced, Keselenko said.
" It's very important to have good
human-resources policies, good humanresources
managers. Have expectations
set from the beginning. Have trained
supervisors. All of that is very
important, " Keselenko said.
" You're dealing with business owners
for whom this may be the first business
that they've run. So it's really important to
make sure you get professional advice and,
in the beginning, to set it up properly. "
Bart Schaneman contributed to this report.
MJBizMag February 2021

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