Cannabis Co. Cresco Seeks Toss Of Workers’ Contract Claim

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href=”https://www.law360.com/employment-authority/articles/1391914/#”>Emilie Ruscoe

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Cannabis company Cresco Labs has asked a federal judge in Chicago to toss a breach of contract claim from a proposed class action accusing the company of failing to pay its workers for the time they spent putting on and taking off required personal protective equipment, arguing that at-will employees never had a contract with the company to begin with.

In a brief filed Monday, defendants Cresco Labs LLC and Cresco Labs Inc. told U.S. District Judge Gary Feinerman that the suit filed by Janice Dutcher and Stacy Negley describes “the textbook attributes of at-will employment, the hallmark of which is the absence of a contract between the employer and employee,” Cresco said.

The company didn’t seek dismissal of four other claims Dutcher and Negley included in their suit, including violations of federal and Massachusetts state labor laws and an unjust enrichment allegation.

Dutcher and Negley launched the suit in April, claiming that they were required to arrive at work about 15 minutes early each day to suit up in protective gear and, for some time, undergo a “mandatory on-site pre-shift health screening procedure” before they were able to clock in.

The pair also claimed they didn’t get proper meal periods as required by federal law because of the time it took to take off and put on their gear, and contended that the off-the-clock prep time also sometimes should have been paid as overtime.

“Cresco could have easily paid plaintiffs and the putative collective/class members for the mandatory pre-shift and post-shift work but deliberately chose not to,” the workers said in their suit.

On Monday, Cresco contended that “here, plaintiffs set forth bare allegations that simply being paid for their work and the existence of ‘earning statements’ showing their pay rate somehow reflected a contract with Cresco,” telling Judge Feinerman that such allegations are insufficient under relevant law.

In a footnote, the company also took aim at the duo’s class action allegations as they related to the breach of contract claim, arguing that the breach of contract allegation would be “untenable as a class action” because the court would have to apply different state laws to different putative class members, who are spread across nine states in which Cresco has facilities.

Dutcher and Negley, who both worked in a Cresco cultivation center in Massachusetts, want to represent both a nationwide class and a Massachusetts class of Cresco employees who were subject to the allegedly unfair policy. Dutcher worked for Cresco for about 10 months in 2020, and Negley started at the company in 2019 and worked there for about a year and a half.

Representatives for the parties did not immediately respond to requests for comment Tuesday.

Cresco is represented by Kyle A. Petersen and Brandon L. Dixon of Seyfarth Shaw LLP.

The workers and the proposed class are represented by Matthew L. Turner, Kevin J. Stoops and Rod M. Johnston of Sommers Schwartz PC and Benjamin Knox Steffans of Steffans Legal PLLC.

The case is Dutcher et al. v. Cresco Labs Inc. et al., case number 1:21-cv-02106, in the U.S. District Court for the Northern District of Illinois.

–Additional reporting by Sarah Jarvis. Editing by Andrew Cohen.

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