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Labor and Employment Law Program

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MRTA Policy Recommendations

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MRTA Policy Recommendations

The Marijuana Regulation and Taxation Act (MRTA) is both social equity and employment legislation with a goal of repairing the damage caused by mass incarceration. The legislation will produce jobs in NYS, and there are policy/implementation issues we suggest be considered.

Policy and Implementation Recommendations

There are two critical strategies that will enhance the social equity focus of the implementation of the MRTA—accountability systems and education and training (labor and employment law and criminal history) for all stakeholders.

Accountability Systems: The legislation sets forth a well-constructed framework for building a socially equitable cannabis industry. Equal employment law teaches that accountability systems for measuring and monitoring the activities of all stakeholders is one key to success. Accountability systems need to be embedded and monitored in all MRTA programs and processes.

Education and Training of Stakeholders: Another key is the education and training of job seekers, workers, and employers of their legal rights and obligations under federal, NYS, and local laws. These include EEO, labor, background screening, wage and hour, Fair Credit Reporting Act and criminal history laws. Each group needs to know and understand the rights and obligations of the other to foster an equitable system and minimize exploitation.

Criminal Records Expungement

The law provides a two-year window for the Office of Court Administrator (OCA) to expunge criminal records based on cannabis convictions. Some of the records will be easily accessible, others will be complicated by other entries, and others will be years old and hard to find. Each person whose record has been expunged should be notified in writing via email and regular mail of the expungement with an explanation about what it means; this should include mention of notification to the FBI of the expungement for their database.

Education/Training: People will need education to help them understand what the expungement means in their lives, including how to answer questions on a job application about their criminal record and talking to employers after a background check has been ordered and the report still incorrectly lists the cannabis conviction.

Accountability Measure: The OCA/DCJS should report quarterly on the number of expungements by race, sex, zip code, and reported to the FBI, as well as including the number of remaining records to be expunged to ensure that OCA/DCJS meet the two-year deadline for expungements.

Background Checks: Credit Reporting Agencies (CRAs)

As previously mentioned, employers sometimes used CRAs to do background checks on prospective employees. Many CRAs maintain their own databases and fail to make updates on a regular basis. An education campaign by NYS for these organizations is necessary to make clear that they need to regularly check and update their databases with information from the OCA about the current status of a person’s record. An incorrect report jeopardizes a person’s employment prospects and means that the candidate must be able to explain the expungement to the employer at some stage of the hiring process, even in a ban the box jurisdictions. The OCA can work with the Professional Background Screeners Association, a national group that sets standards for the industry, to publicize the information on how to maintain accurate information in their databases.

Cannabis Employers: Social Equity Hiring

While the MRTA strongly encourages the granting of licenses to those whose lives have been damaged by the war on drugs--people of color, MBEs, WBEs, distressed farmers, and service-disabled veterans--there will be licenses granted to cannabis employers who do not meet these criteria. For those companies, granting of licenses should require a robust hiring and retention plan to obtain a license and meet the goal that 25% of their work force be social equity hires. The plan should be specific about how they intend to hire and retain people previously involved in the criminal legal system and their family members, people who live in specific zip codes and people who live in federally subsidized housing such as NYCHA in NYC. The plan should detail outreach efforts in these areas, including job fairs and working with local religious groups, community and re-entry organizations, tenant associations in federally subsidized housing, community colleges, neighborhood/ethnic newspapers, bus shelters, subways lines and stations, etc.

Retention and promotion need to be included as part of the plan. People with criminal records who have been out of the job market need help acquiring the workplace skills that other workers gain through employment. Therefore, companies should be required to provide services to people and their families who have been involved in the criminal legal system and/or are from affected communities, including but not limited to:

  • Thorough workplace orientation and onboarding
  • Soft skills training such as workplace communication, conflict resolution, attire, attendance practices, etc.
  • Tuition reimbursement for GED and college education
  • Social services support, including childcare, transportation assistance, flexible time for parole/probation reporting and court appointments, etc.
  • On-the-job training programs tied to clearly delineated promotional ladders that provide growth opportunities upon completion.

Accountability Measures: These cannabis employers should be required to report every six months until fully staffed and then on an annual basis information on each job category by race, sex, zip code, pay by race and sex, and employee departures (voluntary and discharges). Additionally, data on education, including GEDs, college, in-house job training, and number of people promoted for each job category by race, sex, zip code, pay by race and sex should also be reported. Analysis of data provided should be used to determine whether a license should be revoked/renewed.

Racial and Gender Disparities in the Cannabis Industry

While the cannabis industry is exploding around the country, the numbers of minority-owned business in cannabis is under 2% nationwide. The MRTA aims to rectify that situation by providing money for the NY State Urban Development Corporation to create incubators for social equity small business. The incubators will provide basics for new businesses, including startup capital, knowledge about business practices, assistance with licensing and government forms, accounting, legal requirements for businesses that local governments impose.

Just as important, incubators and other organizations, working with new business owners should provide training on federal, NYS and local employment laws (EEO, harassment, wage and hour, social security, workers’ compensation, unemployment insurance, health care and leave policies, etc.) for the businesses to avoid placing themselves in legal jeopardy. Additionally, training is needed in labor relations law, given the labor peace agreement requirement in the MRTA, as well as management skills, hiring and retention policies, human resource management.

Community Education

Similarly, grants to community-based non-profits utilizing Community Grant Re-invest Funds will provide training to communities impacted by mass incarceration. Education from reentry and job placement to financial literacy and nutrition services are anticipated. A missing component is worker rights training, which is necessary for all employees to know their rights concerning federal, state, and local wage and hour, ban-the-box, discrimination (criminal records, race, sex, LGBTQ, religious, age, disability, etc.), sexual harassment, leave policy, Fair Credit Reporting Act and labor laws. This is especially important for people who have been out of the labor market and are often exploited by unscrupulous employers and labor brokers.

Areas not mentioned above but that need further discussion

NYS occupational safety and health legislation for private sector employers and employees: As we saw clearly with Covid-19, the federal health and safety law (OSHA) is limited, the agency is underfunded, and enforcement is dependent on who is President. NYS needs its own occupational and safety health law that includes standards for nursery, cultivation, processing, distribution, and micro-business of cannabis.

Apprenticeship programs: Another area to explore is a cannabis industry joint labor-management apprenticeship program, regulated by the NYS Labor Department. Apprenticeships are a nationally recognized way for workers to earn while they learn and provide the industry with a well-trained labor force. The combination of classroom and on-the-job training has helped thousands move into the middle class in NYS and sometimes become owners of their own companies. While in the apprenticeship program, apprentices will need to be provided with carfare, books, and any equipment required for the program.

Drug testing and impairment at work: Employer drug testing and impairment standards policies are important areas for legislative or regulatory consideration. Current NYS labor law prohibits discrimination based on the use of cannabis. By legislation and collective bargaining agreements, drug testing is required for certain jobs. Testing is not a reliable indicator of impairment, in part due to the length of time that cannabis stays in the system. Because cannabis use was illegal, this often led to discipline/discharge without consideration of workplace behavior, a practice that needs revision based, not on a positive test, but on behavior that indicates impairment. Defining what behaviors on the job constitute impairment from cannabis use is an issue that will be addressed by employers and unions, in the absence of the establishment of real standards. This is especially important, given the concern that behavioral “racial profiling” could take place.