Sometimes California’s cannabis rules can be astonishing, even to the professionals. Our organization arrived throughout a single example of this not too long ago: Segment 26065 of MAUCRSA (Cal. Bus. & Prof. Code § 26065), which provides basically that staff “engaged in the cultivation of hashish less than this division shall be subject to Wage Purchase No. four-2001 of the Industrial Welfare Commission.”
A Temporary Qualifications on Wage Orders
Beneath California’s labor and work legal guidelines, minimum wage costs and extra time pay demands are set through the publication of Industrial Welfare Commission “Wage Orders.” Nowadays, there are eighteen IWC Wage Orders and all of them are posted on the Division of Industrial Relation’s website.
To be consumer-pleasant and to permit for industry-specific customization, most of the wage orders only use to especially selected industries such as the “Canning, Freezing, and Preserving Industry” (Wage Purchase 3-2001), the “Public Housekeeping Industry” (Wage Get 5-2001), and the “Broadcasting Industry” (Wage Purchase eleven-2001). Nonetheless, there is a single “Miscellaneous Employees” capture-all wage get (Wage Get 17-2001) covering all staff members not expressly protected by an market-specific Wage Order.
In our experience, while it is sometimes hard to explain to which wage get covers a unique staff, it is normally not so complicated. California courts usually allow for the terms within each and every wage order to have their prevalent standard which means and sometimes the wage orders them selves will have practical definitions to supply more advice (for example, Wage Get 14-2001 contains a a hundred and twenty-word definition for “sheepherder”). Due to the fact of this, executives, HR specialists and employment counsel all are likely to recite the relevant wage orders as second mother nature – Wage Get nine covers truckers and the transportation business, Wage Buy one handles staff members in the manufacturing industry, etcetera.
This is exactly why Part 26065 of California’s cannabis legislation is this sort of a difficult surprise.
Far more About Segment 26065 of MAUCRSA
California Business and Professions Code area 26065 (“Section 26065”) offers just that employees “engaged in the cultivation of hashish less than this division shall be topic to Wage Buy No. 4-2001 of the Industrial Welfare Fee.” But, on its experience, Wage Buy No. 4-2001 (Wage Order 4) only applies to “persons utilized in professional, technical, clerical, mechanical, and comparable occupations irrespective of whether paid out on a time, piece charge, commission, or other basis.”
In the meantime, Wage Purchase No. 14-2001 (Wage Get fourteen) covers “Agricultural Occupations,” Wage Buy No. eight-2001 (Wage Get 8) covers “Industries Managing Solutions Immediately after Harvest,” and Wage Buy No. 13-2001 (Wage Purchase thirteen) handles “Industries Planning Agricultural Items for Sector, on the Farm.” But because of California’s hashish rules, none of these a few “agriculture” wage orders utilize to the cultivation of cannabis.
This in essence implies that California cannabis farmers compete below a materially diverse set of wage and hour rules from those people masking all other farming businesses in the point out.
Why Subjecting Hashish Cultivators to Wage Buy 4 Matters?
In our estimation, there are three primary explanations why pushing hashish cultivation into Wage Purchase 4 matters.
1) Hashish Cultivators Want to Shell out More Time beyond regulation Wages
With just a couple of exceptions, each and every of the wage orders offers for the subsequent additional time spend needs: (1) additional time pay out equal to a single and a single-fifty percent times an employee’s common level of pay for all hrs labored in excessive of 8 hrs in a workday as nicely as for the initially eight several hours worked on the seventh consecutive day of do the job, and (two) double shell out equivalent to two times an employee’s frequent rate of shell out for all hours worked in extra of twelve hrs in a workday as nicely as for every hour worked on the seventh consecutive working day of do the job after the initially eight hours.
Wage Orders four offers for this. But Wage Buy fourteen makes it possible for, at least for now, farming businesses to fork out a typical wage price to its staff members for the initial ten (ten) several hours of operate in any workday. In addition, Wage Buy fourteen does not presently call for double spend other than for get the job done in excess of 8 several hours on the seventh consecutive working day of operate.
Over the upcoming seven years, the additional time pay out specifications below Wage Purchase 14 will transform a little every single 12 months in order to “phase in” time beyond regulation pay back specifications that much more carefully resemble people identified in the other wage orders. On the other hand, even just after this period in completes in 2025, farming companies in the hashish sector will have some extra burdensome overtime pay back specifications remaining. For instance, underneath specified instances, Wage Buy 14 permits agricultural employers to have workers get the job done seven-day workweeks without having obtaining to pay any extra time wages. Cannabis cultivators will not have this benefit. Also, most farming companies do not presently have to pay back extra time to staff who shell out far more than 50 percent of their operating time as an “irrigator.” Also, not like the other field-distinct wage orders, Wage Purchase 14 for agriculture (other than cannabis) permits unique additional time pay arrangements if memorialized in a collective bargaining arrangement so extensive as the unionized staff members make at least thirty p.c (thirty%) more than minimum amount wage. This offers other farming businesses exterior the hashish field the possibility to do the job with a union to arrive up with additional flexible time beyond regulation shell out techniques. Cannabis cultivators seem not to have this opportunity.
2) Less Individuals are “Overtime Exempt” on a Hashish Farm
A person key distinction concerning Wage Purchase four, which applies to cannabis cultivation because of Portion 26065, and Wage Order fourteen, which broadly applies to all other agricultural pursuits in the Point out, is the additional permissive way Wage Buy 14 strategies the classification of time beyond regulation exempt staff members, i.e., those people workforce who are not legally entitled to extra time pay. Wage Order 4 lays out 3 typical statutory exemptions from the obligation to fork out time beyond regulation wages. These a few typical exemptions, which are identified in nearly all the wage orders, are referred to as the “executive exemption,” the “professional exemption,” and the “administrative exemption.” Place only, the govt exemption makes it possible for companies to avoid shelling out overtime wages to its executives as extensive as they control the enterprise, have the authority to seek the services of and hearth other workforce, exercise discretion and impartial judgment in their roles, and receive a regular monthly wage equal no less than two situations the condition least wage. The skilled exemption applies to accredited professionals. And the administrative exemption applies to very paid out directors who manage typical small business functions, commonly with specialised or technical instruction or practical experience.
In distinction, the sorts of staff who are extra time exempt underneath Wage Get fourteen are noticeably unique. For example, within just the agriculture business, overtime shell out prerequisites do not use (for each Wage Buy fourteen) to the dad and mom, wife or husband, young children, or legally adopted small children of farming businesses. The overtime fork out necessities also do not utilize to anyone “engaged in work which is generally intellectual, managerial or creative, and which demands exercising of discretion and unbiased judgment,” if the person earns pay back in excessive of two moments the state minimum amount wage fee.
three) Cannabis Cultivators Will have to Deal with Some Strange “Farming” Needs
Lastly, demanding hashish cultivators to operate underneath Wage Purchase 4 creates a handful of other surprising, yet arguably not highly-priced, necessities. For example, Wage Buy four necessitates weather manage (“The temperature taken care of in each operate place shall present realistic ease and comfort regular with business-wide specifications for the mother nature of the process and the operate done.”) this is not necessary from most farming businesses underneath Wage Get fourteen. It is unclear what “industry-broad standards” for local weather control exist for out of doors cultivation.
Wage Order 4 also calls for employers to offer, independent from bogs: (i) a altering place with “suitable lockers, closets or equal for the safekeeping of employees’ outer apparel during operating several hours,” (ii) “an sufficient number of ideal seats” inside “reasonable proximity to the operate place,” and (iii) “suitable resting services.” These specifications aren’t found in Wage Order 14.
At our organization we frequently perform with cannabis companies to mitigate legal responsibility and guard their small business, including dealing with wage and hour promises, and assisting set distinct guidelines for the organization and its members to abide by. If your cannabis cultivation organization desires to create or guarantee compliance with California’s Wage Orders, such as Wage Get four, remember to contact the hashish marketplace labor & work lawyers at Rogoway Law Team.
The put up Cannabis Cultivator Beware: A Wage & Hour Lure for the Unwary appeared initial on Rogoway Regulation.