Prohibition Is Good for the Pot Entrepreneur & Bad for the Worker

Founders and funders steal the headlines like they do in Silicon Valley and everywhere else entrepreneurship is fetishized, but make no mistake: The American marijuana industry is built by the worker.

And even in legal states, marijuana-industry workers are particularly vulnerable to workplace abuses, a recent law-journal analysis argues.

Part of the reason — and part of the reason cannabis-business owners can get away with it — is federal prohibition, which may make enforcing federal workplace safety and civil-rights laws more difficult to enforce.

This “coverage gap” means one of the drug war’s worst abuses can be perpetuated: that low-wage workers of color are especially at risk of abuses perpetrated by white and male business owners, the ownership profile at more than 80% of American cannabis retail outlets.

Cultivating, processing, and selling cannabis is labor-intensive work. Close to 300,000 people are employed in the marijuana industry or in trades reliant on cannabis -industry demands, according to an analysis from the spring. And, with more states legalizing every year and demand growing steadily, weed work could be the single fastest-growing job sector in the country.

Cannabis work isn’t necessarily remunerative work. Most marijuana-sector jobs are entry-level retail or agricultural work. This is to say these are jobs that are often low in pay. Low-wage workers are often the workers most at risk of wage theft and other workplace abuses.

And since federal law both outlaws cannabis and provides certain specific workplace protections — such as prohibitions against age-discrimination — marijuana workers seeking redress in federal court against a violation of federal law may have difficulty collecting, according to Chris Conrad, a third-year student at Georgetown University Law Center and an editor of that school’s law review.

Most of Conrad’s recent article “Reefer Access: Dispensaries as ‘Places of Accommodation’ Under Title III of the ADA” concerns protections for customers seeking entry or access to a dispensary — and whether cannabis retail outlets might not be subject to a lawsuit alleging a violation of the Americans with Disabilities Act for failing to make reasonable accommodations to allow access to someone in a wheelchair.

In states where cannabis retail outlets began life as medical-marijuana dispensaries and are thus governed by strict state laws mandating accommodations for people with disabilities, this may be a non-issue: accommodation is guaranteed under state law, which then offers an avenue to redress any grievance.

But the worker may be in trouble. As per Conrad’s analysis, “these employees are engaging in an ongoing federal criminal conspiracy, and so very likely wield diminished protections” under both the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act.

If an employer was found to have violated any one or all of these laws, the employer might be ordered by a court to re-instate the employee or pay them damages. If a federal court ordered a state-legal dispensary to give a worker back their job or give them money, “that would make the court ‘a party to the carrying out of… the very restraints forbidden [by law],’” argues Conrad. In this way, a federal court could recognize a willful violation of employment law but be enjoined from doing anything about it.

This risk will exist until federal prohibition ends, and while removing cannabis from the Controlled Substances Act seems a fait accompli if a Democrat is elected president next year — aside from Joe Biden, all of Donald Trump’s would-be challengers have gone on record supporting legalization — more pressing than taxation or banking relief are marijuana-workplace protections acknowledging “these coverage gaps,” Conrad wrote.

Workers need “a stop-gap legislative fix to provide employee protections until cannabis advocates can marshal the necessary support for comprehensive federal legalization,” he wrote. These kinds of protections are all the more necessary given the context of the ongoing “equity” struggle, in which people of color and people without stupendous resources have found themselves locked out of marijuana industry opportunity.

Though state courts have so far provided some remedy, “[g]iven that members of several identity-based groups have been disproportionately targeted by marijuana arrests and convictions in the past, it seems extraordinarily inequitable to leave these individuals unprotected by federal workplace discrimination laws in this circumstance — especially considering that 81% of cannabis business owners are white,” he wrote.

TELL US, are you surprised workers in the cannabis industry are not supported by civil rights laws?