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Home » Coverage » 10th Cir.: Workers for Recreational Marijuana Covered by FLSA, Notwithstanding Federal Law Which Renders Business Illegal

10th Cir.: Workers for Recreational Marijuana Covered by FLSA, Notwithstanding Federal Law Which Renders Business Illegal

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Andrew Frisch

Kenney v. Helix TCS, Inc.

Following denial of the defendant-employer Helix’s motion to dismiss, Helix appealed.  Helix–a company that provides security services in the state sanctioned recreational marijuana business–appealed contending that the FLSA did not apply to it.  Specifically, Helix asserted that the FLSA does not apply to workers such as plaintiff, because Colorado’s recreational marijuana industry is in violation of federal law, the Controlled Substances Act (CSA). Rejecting this argument just as the court below had, the Tenth Circuit held that just because an employer – such as one in Colorado’s recreational marijuana industry – may be in violation of federal law, here the CSA, that does not mean its employees are not entitled to overtime under the Fair Labor Standards Act (FLSA).

Helix TCS, Inc., provides security services for businesses in Colorado’s state-sanctioned marijuana industry. One of its employees, Robert Kenney, alleged that he and other security guards regularly worked more than 40 hours per week without overtime pay.

Helix did not dispute the fact that Kenney worked more than 40 hours without overtime, nor did it try to argue that he was covered by one of the FLSA’s many overtime exemptions. Instead, it argued that the FLSA was in conflict with CSA’s purpose.  The Tenth Circuit rejected this argument and held that employers are not excused from complying with federal laws because of their other federal violations.

The 10th Circuit compared the situation to the 1931 trial of Al Capone in which jurors convicted the gangster for failing to pay taxes on his ill-gotten income. Just as there was no reason then why the fact a business was unlawful should exempt it from paying the taxes it would otherwise have had to pay, the Tenth Circuit said there is no reason today why a recreational marijuana company should be exempt from paying overtime just because it may be in violation of the CSA.

Click Kenney v. Helix TCS, Inc. to read the entire decision.

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