FAQ’S Regarding Cannabis Cultivation In California
Q. Are employees in cannabis cultivation considered agricultural workers falling under IWC Wage Order 14?
A. No. Although employees in cannabis cultivation are working in defined agricultural occupations for an agricultural employer, the Medicinal and Adult-Use Cannabis Regulation and Safety Act (“MAUCRSA”) specifically provides that those employees are subject to IWC Wage Order 4-2001, not IWC Wage Order 14-2001 governing agricultural occupations. [California Business & Professions Code §26065]. As such, employees engaged in the cultivation of cannabis are entitled to overtime pay for hours worked in excess of eight in any workday or more than 40 hours in any workweek. (Agricultural employees are entitled to overtime after 10 hours in any workday, or more than 6 days in a workweek.) Employees engaged in the cultivation of cannabis are also entitled to double their regular rate of pay for hours worked in excess of twelve in any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek. Employees engaged in the cultivation of cannabis are entitled to applicable meal periods and rest periods and may recover one hour of pay at the regular rate of pay for each workday that the meal period or rest period was not provided.
Q. Will a labor contractor engaged in cannabis cultivation be required to obtain an FLC license?
A. Yes. An FLC, as defined under California Labor Code §1682(b), can either be (1) a person who, for a fee, employs workers to render personal services in connection with the production of any farm products to, for, or under the direction of a third person or (2) a person who both recruits, solicits, supplies, or hires workers on behalf of an employer engaged in the growing or producing of farm products and, for a fee, provides in connection therewith one or more of the following services: furnishes board, lodging, or transportation for those workers; supervises, times, checks, counts, weighs, or otherwise directs or measures their work; or disburses wage payments to these persons.
The cultivation of cannabis includes any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of cannabis. These activities are in connection with the “production of farm products” as defined by the Labor Code governing farm labor contractors. Nothing in the MAUCRSA prohibits the use of contracted labor. Moreover, nothing in the MAUCRSA exempts an employer, cannabis grower or farm labor contractor from complying with applicable Labor Code provisions regulating farm labor contractors. As such, any labor contractor who provides workers to any cannabis licensee, grower or owner to perform cannabis cultivation activities must hold a farm labor contractor license pursuant to the provisions of Labor Code sections §1682, et seq.
Q. What impact can participation in cannabis cultivation have on an FLC license application or renewal?
A. If an FLC is engaged in cannabis cultivation with a licensed cannabis grower then the activity would not be considered a state crime, and the Labor Commissioner will not deny or revoke a license in the absence of other facts relevant to applications for an FLC license.
Cannabis cultivation is a highly regulated activity, primarily by the California Department of Consumer Affairs, Bureau of Cannabis Control and The Department of Food and Agriculture. Medicinal and commercial cannabis growers are required to be licensed. As such, participation in cannabis cultivation with an unlicensed grower would be deemed an illegal activity and could impact an FLC applicant as would participation in any other illegal activity.
Q. Do I need to have a federal registration card in order to obtain a California FLC license?
A. The Labor Code and the Labor Commissioner’s FLC application requires that each contractor or worker who is required to be registered by U.S. Department of Labor must provide his or her registration information to the Labor Commissioner in connection with a FLC application. [Labor Code §1684(a)(6) & (7)]. Contractors who do not provide a federal registration number will be required to explain why they are exempt from registration under the federal Migrant and Seasonal Agricultural and Worker Protection Act before a California FLC license will be issued.