Part I of this two-part series considered some of the more significant banking, business and ethical issues related to the legalization of marijuana. Part II will now highlight issues related to employment in states where marijuana is legal. 

This two-part blog will highlight significant issues attorneys and their clients face as a result of the emergence of legalized marijuana. In this Part I, we’ll consider the challenges posed to banks and other businesses, as well as the ethical obstacles confronting lawyers. In Part II, we’ll look at employment law issues related to marijuana’s legalization.

The U.S. Department of Labor has recently issued a document (Administrator’s Interpretation No. 2015-1) that offers business owners additional guidance for properly classifying an “employee” vs. an “independent contractor.” The historic “economic realities” test, widely used by courts when determining a worker’s classification, consists of a number of factors that have over time been applied inconsistently and with certain factors given substantial weight over the others. The Administrator’s Interpretation does not change or reject the economic realities test, but rather sheds light on proper application of the test based on the circumstances.