Skip to main content

February 2, 2023

Volume XIII, Number 33

National Law Review
  • Login
  • Mdn
  • FB
  • twt
  • link
  • home
  • rss
  • logo
  • Publish / Advertise with Us
    • Publish
    • Advertise
    • Publishing Firms
    • E Newsbulletins
    • Law Student Writing Contest
    • Contact Us
    • Terms of Use
    • Privacy Policy
    • Join Our Team
    • Search
  • Trending Legal News
    • Most Recent
    • Legal News Podcast
    • What's Trending
    • Type of Law
      • Antitrust Law
      • Bankruptcy & Restructuring
      • Biotech, Food & Drug
      • Business of Law
      • Construction & Real Estate
      • Cybersecurity Media & FCC
      • Election & Legislative
      • Environmental & Energy
      • Family, Estates & Trusts
      • Financial, Securities & Banking
      • Global
      • Health Care Law
      • Immigration
      • Insurance
      • Intellectual Property Law
      • Labor & Employment
      • Litigation
      • Public Services, Infrastructure, Transportation
      • Tax
      • White Collar Crime & Consumer Rights
    • E Newsbulletins
    • Legal Educational Events
    • NLR Blog
    • Search
  • About Us
    • About the NLR
    • NLR Team
    • Publishing Firms
    • E Newsbulletins
    • NLR Thought Leadership Awards
      • 2018
      • 2019
      • 2020
      • 2021
      • 2022
    • NLR Blog
    • Contact Us
    • Terms of Use
    • Privacy Policy
    • Search
  • Contact Us
    • Contact Us
    • E Newsbulletins
    • Publish
    • Advertise
    • Law Student Writing Contest
    • Search
  • Quick Links
    • Legal News Podcast
    • Type of Law
      • Antitrust Law
      • Bankruptcy & Restructuring
      • Biotech, Food & Drug
      • Business of Law
      • Construction & Real Estate
      • Cybersecurity Media & FCC
      • Election & Legislative
      • Environmental & Energy
      • Family, Estates & Trusts
      • Financial, Securities & Banking
      • Global
      • Health Care Law
      • Immigration
      • Insurance
      • Intellectual Property Law
      • Labor & Employment
      • Litigation
      • Public Services, Infrastructure, Transportation
      • Tax
      • White Collar Crime & Consumer Rights
    • E Newsbulletins
    • Legal Educational Events
    • Law Student Writing Contest
    • NLR Blog
    • Contact Us
    • Search
  • ENEWSBULLETINS

64

New Articles
Bottom Row Image
Advertisement

February 01, 2023

Subscribe to Latest Legal News and Analysis
  • Graduation Goods Settlement: A Good Reminder of AGs’ Data Security... by: Liisa M. Thomas and Kari M. Rollins
  • IRS and Treasury Provide Guidance on the Excise Tax on Repurchases of... by: Robert A. Friedman and Malcolm S. Hochenberg
  • Breathe Easy: U.S. EPA Seeks to Significantly Tighten Fine... by: Peter A. Tomasi and Amanda K. Beggs
  • Insurer Could Not Rely on Extrinsic Evidence to Circumvent Its Duty... by: Lorelie S. Masters and Yaniel Abreu
  • CMS Issues Long-Awaited Medicare Advantage RADV Final Rule by: Christine M. Clements and John M. Tilton
  • Proposed Amendments Schedule 13D - Part Two by: Peter D. Fetzer and Stuart E. Fross
  • “Not My Work”: When Artists Dispute Authorship by: Sheppard, Mullin, Richter, & Hampton LLP
  • (Mothering) Justice Denied: Legislative Amendments to Minimum Wage... by: Emily M. Petroski and Allan S. Rubin
  • Not so FAST – AB 257 on Hold Pending Voter Referendum in 2024 by: Laura A. Pierson-Scheinberg and Gina M. Roccanova
  • Proposed Amendments Schedule 13D – Part One by: Peter D. Fetzer and Stuart E. Fross
  • Sports Betting Launches in Massachusetts Just in Time for the... by: Katherine Guarino Baker and Malinda Reed
  • PFAS Consumer Fraud Trend Continues by: John Gardella
  • NIST Publishes Artificial Intelligence Risk Management Framework by: Adam S. Forman and Nathaniel M. Glasser
  • Key Federal PFAS Regulatory Developments in 2022 and 2023 by: Environmental, Safety & Health Squire Patton Boggs Practice Group
  • Media & Entertainment: 10 Legal Challenges for Companies in 2023 by: Michelle A. Cooke and William D'Angelo, III
  • ECHA Provides Updated Guidance on Testing Nanomaterials by: Lynn L. Bergeson and Carla N. Hutton
  • Wisconsin District Court Rulings Signal Potential New Trend Favoring... by: Myron D. Rumeld and Tulio D. Chirinos
  • The Wisconsin Supreme Court Keeps Wisconsin Weird and Applies the... by: Gregory N. Heinen
  • Ethics & Compliance: Let’s Talk About Cybersecurity by: Townsend L. Bourne
  • Federal Reserve, FDIC, and OCC Issue the First Joint Statement on... by: Marina Olman-Pal and Mark D. Shaffer
  • It’s a Family Affair: SCOTX Compels Non-Signatory Minor Children to... by: Sydney M. Warren
  • EPO and IEA Release Hydrogen Patent Report Showing Automotive Sector... by: Chase J. Brill
  • Whistleblowers Now Protected Under Workplace Nondiscrimination Law by: Christine Artus and Natacha Meyer
  • Private Equity and Digital Health in 2023: Policy Updates and Trends... by: Phil Kim and Sheela Ranganathan
  • If at First You Don’t Succeed: Updated Medical Cannabis Bill Filed in... by: Whitt Steineker and J. Hunter Robinson
  • SEC Showcases Lesser-Known Legal Theory in Crypto Lending Suit by: Christopher J. Bosch and Elizabette Privat
  • Anti-Money Laundering (AML) Whistleblower Provision Expanded to Cover... by: Kara M. Bombach and Kyle R. Freeny
  • The New Hart-Scott-Rodino Magic Number is $111.4 million, and Big... by: Matthew C. Hans and Herbert F. Allen
  • New York HERO Act Amendment Establishes a Five-Day Deadline to... by: Simone R.D. Francis and Jamie Haar
  • Trade Alert: New Antidumping (AD) and Countervailing Duty (CVD)... by: International Trade Practice at Squire Patton Boggs
  • Adapting Trade to Mitigate Climate Change Gets Major International... by: Bruce White
  • Time is Running Out to File an International Investment Arbitration... by: Ivan W. Bilaniuk
  • A Warning for Companies with Colorado Employees Seeking to Enforce... by: Marc J. Musyl and Margaret M. Knudsen
  • FTC Extends Comment Period for Green Guides Update by: Sheila A. Millar and Jean-Cyril Walker
  • Three Essential Elements to Achieve CRM Success by: Dave Whiteside and Christina R. Fritsch JD
  • FTC Extends Deadline for Comments on Green Guides to April 24, 2023 by: Lynn L. Bergeson and Carla N. Hutton
  • New York’s Governor Vetoes Expansion of Wrongful Death Damages – For... by: Rosario M. Vignali
  • Time for Employers to Decide Who They Are Sponsoring for H-1Bs by: Nancy A. Noonan
  • Unpacking Averages: Using NLP to Assess FDA’s Compliance with Notice... by: Bradley Merrill Thompson
  • How Buying Pet Stairs Led to a Class Action Lawsuit over Wiretapping by: Daniel J. Mirarchi and Alexander DiMeo
  • Multi-Club Ownership - For the Good of the Game? by: Ankura Consulting Group
  • The Design-Build Contract Blueprint: Exploring the Boundaries of... by: Alexandra E. Ferri and James W. Norment
  • The Handbook Tale: Beware the Importance of Your Paperwork by: Anne Knox Averitt and Diana N. Evans
  • SECURE Act 2.0 – What 401(k) Plan Sponsors Need to Know – Employment... by: George Carroll Whipple, III
  • The Green Mountain State Unveils its Voluntary Paid Family and... by: Nancy Gunzenhauser Popper and Ashley Krezmien
  • FinCEN’s Uniform Beneficial Ownership Information Reporting Rules: A... by: Erin Reeves McGinnis and Ethan Rosenfeld
  • OSHA Increases Penalties for 2023 by: Courtney M. Malveaux and Kristina H. Vaquera
  • EPA Opens Registration for ECOTOX Knowledgebase Encore Training Being... by: Lynn L. Bergeson and Carla N. Hutton
  • FDA Announces Proposed Redesign to Create Human Foods Program by: Food and Drug Law at Keller and Heckman
  • U.S. Regulators File Complaints for Digital Asset Market Manipulation... by: Kevin Tran and Brian Russ
  • Domestic Content Requirements of the Inflation Reduction Act: Basic... by: Ryan E. Roberts and Ariel Debin
  • Final Regulations Issued by Massachusetts Department of Family and... by: Patricia A. Moran
  • FTC Extends Deadline for Public Comment on Green Guides to April 24,... by: Phyllis H. Marcus
  • FCPA and Anti-Money Laundering Whistleblowers Can Play a Vital Role... by: Jason Zuckerman and Matthew Stock
  • Europe: Asset Managers – Are You Ready for Climate-Related Reporting... by: Maya C. Ffrench-Adam and Andrew J. Massey
  • California Prepares to Add New Student Loan Servicing Regulations by: Grant A. Premo
  • Madison Square Garden’s Use of Facial Recognition Software to Create... by: Christina Lamoureux and David J. Oberly
  • Stricter Standards Emerging for Subscription-Style Services that... by: Ed Chansky and Erica L. Okerberg
  • 5 Trends to Watch: 2023 Israeli Business by: Joey T. Shabot and Adam Snukal
  • The MetaBirkins Battle by: RiKaleigh C. Johnson
  • Why Is McDonald's Former V.P. Being Judged In Delaware By... by: Keith Paul Bishop
  • Australia: Superannuation Trustees Urged to Improve Member Engagement by: Jim Bulling
  • Australia: Warnings to ‘finfluencers’ Following Federal Court Action... by: Jim Bulling
  • Deal Making in India: What to Expect in 2023? by: Nishchal Joshipura and Harshita Srivastava

January 31, 2023

Subscribe to Latest Legal News and Analysis
  • New Texas Bill Would Provide Qualified Release Relief To Trustees Who... by: David Fowler Johnson
  • USCIS Implements Final Rule on Public Charge Ground of Admissibility by: Mark Wu
  • Bankruptcy Court Doors Swing Open For Cannabis Companies, But Just... by: Mark A. Salzberg
  • Court Rules in Favor of Manufacturers in 340B Contract Pharmacy Case by: Emily J. Cook
  • The Office of the United States Trade Representative Releases 2022... by: Aaron Wininger
  • The FDA Gets Blunt: “New Regulatory Pathway for CBD is Needed” by: Daniel S. Zinsmaster and Ashley E. Durner
  • Revisiting the Extraterritorial Reach of Equal Employment Opportunity... by: Natalie C. Groot and Danielle M. Bereznay
  • Delaware Chancery Court Issues Delman Decision Potentially Increasing... by: Mark D. Wood and Richard H. Zelichov
  • Illinois Legislature Passes Broad Paid Leave Bill; Governor Intends... by: John F. Kuenstler and Douglas M. Oldham
  • Nota Bene Episode 158: The U.S.-China Trade War: How It Started and... by: J. Scott Maberry and Reid Whitten
  • New OSHA Enforcement Guidance Promises Steeper Penalties for Employers by: Melanie L. Paul and Joshua M. Henderson
  • Antitrust Risks of ESG Initiatives: Rhetoric vs. Reality by: Joel Mitnick
  • Old North State Report – Jan. 30, 2023 by: George M. Teague
  • DOL Announces Expansion of OSHA's Authority to Issue Increased... by: David C. Lindsay and Leann M. Walsh
  • GSA Issues Request for Information on Carbon Pollution-Free... by: Shaunna E. Bailey
  • Court Deep Sixes Johnson & Johnson Bad Faith Baby Powder... by: Michael G. Nicolella
  • Louisiana Insurance Department Issues Cease and Desist Orders to a... by: Steven L. Imber and Justin T. Liby
  • Has the Bloom Come Off the Rose? It May Be Time to Pull the Plug on... by: Ladd Hirsch
  • SEC Delays Enforcement of Rule 15c2-11 Compliance by: Chris DiAngelo and Anna-Liza B. Harris
  • FDA Issues Final and Draft Guidance Documents Regarding Food Allergen... by: Tracey T. Gonzalez and Lauren Petrin
  • What is a Disaster Preparedness Plan? by: John S. Prisco
  • Northern Long-Eared Bat “Uplisted” to Endangered Status by: William S. "Buddy" Cox III
  • A Summary of FinCEN’s Uniform Beneficial Ownership Information... by: Erin Reeves McGinnis and Ethan Rosenfeld
  • California Begins Formal Rulemaking on Changes to its Recycling and... by: Sheila A. Millar and Jean-Cyril Walker
  • The Transformation in Behavioral Digital Health Services by: Arushi Pandya and Sara Helene Shanti
  • Home Health and Hospice – A Look at Value-Based Initiatives Underway... by: Christine Burke Worthen
  • Review of Recent Whistleblower Developments: January 2023 by: Bryan B. House and Lisa M. Noller
  • Hybrid Purchase-Price Mechanisms – Where Heavens Collide? by: Rutger Sterk
  • CEQ Issues Updated NEPA Guidance on GHG Emissions by: Rachael L. Lipinski and Jenna R. Mandell-Rice
  • Revisiting the Attorney Client Privilege in the Wake of the Supreme... by: Evan M. Piercey
  • Washington District Court Reversal on MTCA Liability for Smokestack... by: David C. Weber and Augustus E. Winkes
  • U.S. Appeals Court Partially Revives Trump-Era Union Election Rule by: Robert T. Dumbacher and Rebekah K. Herman
  • Third Circuit Dismisses Talc Bankruptcy by: Gregory G. Hesse and Brandon Bell
  • Compliance Update — Insights and Highlights January 2023 by: Memrie M. Fortenberry
  • SECURE 2.0 Act Legislation Includes Significant Changes to Individual... by: Michael A. Hart
  • Happy Data Privacy Day from the California AG: CCPA Violation Warning... by: Cynthia J. Larose
  • Forensic Examination of Computers in Discovery Requires Showing of... by: Kathryn C. Cole
  • 2023 Outlook: The Impact of Interest Rate Hikes on the Real Estate... by: David L. Dubrow
  • 100 Industry Organizations Request Extension of Comment Period on FTC... by: Peter A. Steinmeyer and Erik W. Weibust
  • Proper Representation is Worth the Dough: Jung v. Fred’s Bagels LLC by: Francisco F. Guzmán Andrade
  • Non-material Damages in Mexico. by: Armando Arenas and Alejandro Luna Fandiño
  • Data Privacy and the United Nations Sustainable Development Goals by: Abraham Díaz and Gustavo A. Alcocer
  • ARE YOU AFFECTED BY THE PROPOSED CMS GUIDELINES? If You Purchase... by: Jenniffer Cabrera
  • Continued At-Will Employment Sufficient Consideration for Restrictive... by: Justin E. Theriault
  • NIST Releases New Framework for Managing AI and Promoting Trustworthy... by: Hunton Andrews Kurth’s Privacy and Cybersecurity
  • FDA Issues Orphan Drug Exclusivity Policy That Could Be a Catalyst... by: James A. Boiani and Delia A. Deschaine
  • New Law Requires Illinois Employers to Provide Paid Leave for Any... by: Peyton Demith
  • FDA Issues Procedural Notice on Front-of-Package Labeling Research by: Food and Drug Law at Keller and Heckman
  • SECURE 2.0 Includes PBGC Premium Relief… for Some Plans by: Justin S Alex and Heather Monte
  • A New Normal? Omnibus Bill Extends High Deductible Health Plan... by: Jesse T. Foley and Katrina E. McCann
  • DOE Publishes New Strategy for Plastics Innovation by: Lynn L. Bergeson and Carla N. Hutton
  • Telephone and Texting Compliance News: Litigation Update — Third... by: Joshua Briones and Esteban Morales
  • Losing the Keys to the Kingdom – How Key Personnel Unavailability Can... by: Anne Bluth Perry and Adam A. Bartolanzo
  • EPA Proposes to Bar Manufacturing and Processing of 300 PFAS Assumed... by: Thomas C. Berger and Gregory A. Clark
  • Are Medical Diagnostic Methods Patent Ineligible by Convention?:... by: Peter Giunta and Melissa M. Haulcomb
  • This Week in 340B: January 24 – 30, 2023 by: Emily J. Cook and Reuben Bank
  • Weekly Bankruptcy Alert January 30 2023 by: Bankruptcy & Creditors' Rights
  • EUON Publishes Nanopinion on Study of the EU Market for Nanomaterials by: Lynn L. Bergeson and Carla N. Hutton
  • Weekly IRS Roundup January 23 – January 27, 2023 by: Sarah M. Raben
  • Telecom Alert:$100L NAL Over USF Filings; E-Rate Tribal Participation... by: Jaimy "Sindy" Alarcon and Jim Baller

January 30, 2023

Subscribe to Latest Legal News and Analysis
  • News For Veteran-Owned Small Businesses – SDVOSB and VOSB... by: Emily S. Theriault and David S. Gallacher
  • Telephone and Texting Compliance News: Regulatory Update — Commission... by: Russell H. Fox and Jonathan P. Garvin
  • District of Columbia’s New Human Rights Enhancement Amendment Act... by: D’Ontae D. Sylvertooth and Owen J. Peters
  • Singapore: A Rising Tiger Economy for Startups and Venture Capital in... by: Louis Lehot and Eric Chow
  • Court Granted Mandamus Relief To Order District Court To Abate Trust... by: David Fowler Johnson
  • LET’S TALK TEXTS/SMS: Real Quick Synopsis on the Current TCPA Rules... by: Eric J. Troutman
  • US Executive Branch Update – January 30, 2023 by: Stacy A. Swanson
  • California AG Announces CCPA Enforcement Sweep Aimed at Mobile Apps... by: Hunton Andrews Kurth’s Privacy and Cybersecurity
  • DOJ Expands Availability of Declinations with Disgorgement for... by: Erin K. Sullivan and Lane M. Webster
  • SCOTUS Cert Recap: SCOTUS Adds Eight Issues To Its Docket, Including... by: Kian Hudson and Lara Langeneckert
  • The New Hart-Scott-Rodino Filing Thresholds: The FTC and Congress... by: Jennifer M. Driscoll
  • Healthcare Industry May be Impacted by FTC Proposed Rule Prohibiting... by: Dinsmore & Shohl LLP
  • FTC Announces 2023 Thresholds Under HSR Act and Clayton Act New... by: John R Ingrassia and Timothy E. Burroughs
  • Illinois Enacts New Law to Standardize Local Permitting for Renewable... by: Ryan C. Granholm and Amy Antoniolli
  • Louisiana Appellate Court Finds Nondiscretionary Production Bonus... by: Andrew P. Burnside and Ellen C. Rains
  • Inflation Reduction Act: EPA Invites Stakeholder Input on Grant/... by: Steven G. Barringer and Robert Mangas
  • Annual Reports Coming to Pennsylvania and Other Updates to the... by: W. H. Snyder and David M. Aceto
  • SECURE 2.0: Retirement Plan Rules Get a Makeover! by: Labor and Employment Polsinelli
  • New Year, New Protections for Pregnant and Nursing Employees by: Jacqueline A. Hayduk
  • Movement on CPRA Regulations Expected by: Julia K. Kadish
  • USCIS Announces H-1B Cap Registration Period for March 2023 by: John F. Quill
  • Despite Legal and Other Challenges, Amendments to Delaware’s... by: Lisa R. Stark and Sean M. Jones
  • USCIS Announces Registration Period for the FY 2024 H-1B Cap by: Meagan E. Dziura
  • Amazon’s Most Favored Nations Policies Scrutinized Under Sherman Act by: Christopher E Ondeck and John R Ingrassia
  • Coming to Illinois in 2024 – Paid Leave for Any Reason by: Amanda C. Hibbler
  • Rules Enabling Act Key to New Ninth Circuit Decision on Class... by: Wystan M. Ackerman
  • 2022 Privacy World Year in Review: CCPA by: Kristin L. Bryan and Marisol C. Mork
  • Accountable AI Systems through Risk Management: NIST Creates... by: Amy S. Leopard and Elizabeth M. Boone
  • Are Lawyers Who Author Or Vote For Unconstitutional Laws Subject To... by: Keith Paul Bishop
  • PEOS–The European Perspective by: Paul Callegari and Roberto Podda
  • Did You Hear? The EEOC Issues New Guidance on Auditory Disabilities... by: Joe D'Andrea
  • Congress Codifies Longstanding M&A Broker Exemption from SEC... by: Robert Long and William B. Mack
  • Court Affirms Judgment In Divorce Proceeding That Property Was... by: David Fowler Johnson
  • FDA Announces Important Shift in CBD Products Regulation by: Whitt Steineker and Savannah Kolodziej
  • Update: Reclassification of Northern Long-eared Bat as Endangered... by: Matthew D. Manahan and Lisa A. Gilbreath
  • Anti-Abortion Advocacy Groups’ Challenge to FDA-Approved Abortion... by: Amy K. Dow and Olivia K. Plinio
  • FCC Provides Some Clarity On Healthcare Messages, Indirectly Confirms... by: Douglas A. Grimm and Adam D. Bowser
  • SECURE 2.0 Brings Significant Changes for 403(b) Plans by: Katrina E. McCann and Jay E. Jensen
  • Digital Decision Making: Community Association Board of Directors Can... by: Madeline C. Lipe
  • California AG Announces Investigation of Mobile Apps’ CCPA Compliance by: Gretchen A. Ramos
  • SECURE 2.0 Act Brings Slate of Changes to Employer-Sponsored... by: John D. Arendshorst and Andrea M. Gumushian
  • FDA Finalizes Guidance to Prevent Unsafe Contamination of Animal Feed... by: Food and Drug Law at Keller and Heckman
  • Outside Tips: SEC Sues Trio for Trading on Equifax Breach by: Peter D. Hutcheon and Jerome F. Gallagher, Jr.
  • Congress Continues to Expand Bank Secrecy Act Whistleblower Program by: Kevin McCart and Rebecca A. Worthington
  • SECURE 2.0 Series Part 7: Matching Contributions Based on Student... by: Joy Napier-Joyce

Article By

Keahn N. Morris

Sheppard, Mullin, Richter & Hampton LLP
Labor & Employment Law Blog
Sheppard, Mullin, Richter & Hampton LLP full service Global 100 law firm handling corporate law

Related Practices & Jurisdictions


  • Labor & Employment
  • Constitutional Law
  • Administrative & Regulatory
  • ADR / Arbitration / Mediation
  • California
  • Printer-friendly
  • Email this Article
  • REPRINTS & PERMISSIONS
Tweet
Advertisement

AB 1291 Forces California Cannabis Companies To Sign “Labor Peace Agreements” With Unions, But Statute May be Unconstitutional

Wednesday, October 23, 2019

On October 12, 2019, Governor Newsom signed Assembly Bill 1291 (“AB 1291”) into law, which requires companies to sign a so-called “labor peace” agreement with a union or risk losing their cannabis license; thereby, strengthening already union-friendly statewide cannabis law. AB 1291 was supported and endorsed by various unions, including the United Food and Commercial Workers Western States Council, a 170,000-member branch representing thousands of cannabis workers. This bill, as well as other California statutes and local laws, signals a growing insistence by state and local regulators that employers doing business in California accept pro-union requirements. However, many of these new pro-union laws, including AB 1291, may be unconstitutional.

The main takeaways of AB 1291 are as follows:

  1. Effective January 1, 2020, California cannabis license applicants must sign so-called labor peace agreements with a union within 60 days of their 20th hire or risk losing their cannabis license.

  2. Employers and business associations seeking to challenge AB 1291, and other similar state or local union-related ordinances, are encouraged to speak with experienced labor counsel to discuss their options.

  3. Employers seeking to comply with AB 1291 and sign labor peace agreements should conduct due diligence on the labor unions they are considering entering into negotiations with. Not all unions are the same. Additionally, businesses should be thoughtful about what they agree to put into a labor peace agreement to satisfy the requirements under California’s cannabis laws. For example, these agreements are frequently mistakenly referred to as “neutrality agreement.” Neutrality agreements typically contain a commitment from the employer to remain “neutral” through a union organizing campaign. In contrast, AB 1291 does not use the term “neutral(ity)” and, thus, arguments can be made that strict “neutrality” is not required under the statute and may not need to be included in the labor peace agreement. Thus, employers should speak with experienced labor counsel before negotiating labor peace agreements with unions.

Background

Since its adoption into law in 2018, the Medicinal and Adult Use of Cannabis Regulation and Safety Act (“MAUCRSA”) has required applicants for state cannabis licenses with 20 or more employees to “provide a statement that the applicant will enter into, or demonstrate that it has already entered into, and abide by the terms of a labor peace agreement.”1 (Cal. Bus. & Prof. Code § 26015.5(a)(5)(A).) A labor peace agreement, as defined under California’s cannabis laws, must contain the following commitments, at a minimum:

  1. Employer shall not “disrupt” efforts by the union to “communicate with, and attempt to organize and represent” the employer’s employees;

  2. Employer shall give the union “access at reasonable times to areas in which the employees work, for the purpose of meeting with employees to discuss their right to representation, employment rights under state law, and terms and conditions of employment;” and

  3. Union and its members shall not engage in picketing, work stoppages, boycotts, and any other economic interference with the employer’s business.

(Cal. Lab. & Prof Code § 26001(x).)

Effective January 1, 2020, AB 1291 requires an applicant for a state license under MAUCRSA with 20 or more employees to provide a notarized statement that the applicant will enter into, or demonstrate that it has already entered into, and abide by the terms of a labor peace agreement. If the applicant has less than 20 employees and has not yet entered into a labor peace agreement, AB 1291 requires the applicant to provide a notarized statement as a part of its application indicating that the applicant will enter into and abide by the terms of a labor peace agreement within 60 days of employing its 20th employee. By expanding the scope of the crime of perjury, AB 1291 imposes a state-mandated local program and authorizes the Bureau of Cannabis Control, the Department of Food and Agriculture, and the State Department of Public Health to revoke or suspend a license for a violation of these requirements.

AB 1291 May Be Unconstitutional

AB 1291 poses substantial questions as to whether it is unconstitutional due to preemption by the National Labor Relations Act (“NLRA”) under two complementary preemptions doctrines: Garmon and Machinists. In San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), the U.S. Supreme Court declared that the states are constitutionally barred by the U.S. Constitution’s supremacy clause from regulating conduct that NLRA protects, prohibits, or arguably protects or prohibits. Garmon preemption exists to protect the National Labor Relations Board’s (“NLRB”) primary jurisdiction and to preclude a state’s interference with its interpretation and enforcement of the integrated regulatory scheme that is the NLRA. Indeed, Congress delegated exclusive authority to the NLRB because it sought to establish a single, uniform national labor policy that would be unaffected by the vagaries of state law or shaped by local attitudes or prejudices. (Garner v. Teamsters Union, 346 U.S. 485, 490 (1953).) In Machinists v. Wisconsin Employment Relations Comm’n, 427 U. S. 132 (1976), the U.S. Supreme Court similarly declared that the NLRA forbids states to regulate conduct that Congress intended “to be unregulated because left ‘to be controlled by the free play of economic forces.’” Together, Garmon and Machinists preempt state and local policies that would otherwise interfere with the “integrated scheme of regulation” and disrupt the balance of power between labor and management embodied in the NLRA.

It appears AB 1291’s purpose is to afford unions greater rights than provided under the NLRA and make it easier for unions to organize cannabis employers. AB 1291 arguably presents the type of state interference in labor-management relations that Garmon and Machinists preemption forbids. For example, in Golden State Transit Corp. v. City of Los Angeles (“Golden State I”), 475 U.S. 608, 616 (1986), the Supreme Court held that while the NLRA “requires an employer and a union to bargain in good faith, … it does not require them to reach agreement,” nor does it demand a particular outcome from labor negotiations.” The substance of labor negotiations, and the results therefrom, are among those areas Congress intentionally left to the free play of economic forces when it legislated in the field of labor law. (Id.) In that case, the Supreme Court found that Machinists preempted the City of Los Angeles’ (“City”) refusal to renew a taxi cab company’s license when it failed to reach an agreement with striking union members. By conditioning the renewal of the taxi cab franchise on the acceptance of the union’s demands, the City effectively imposed a timeline on the parties’ negotiations and undermined the taxi cab company’s ability to rely on its own economic power to resist the strike. (Id. at 615.) The Supreme Court held that the City could not pressure the taxi cab company into reaching a settlement and thereby “destroy[] the balance of power designed by Congress, and frustrate[] Congress’ decision to leave open the use of economic weapons.” (Id. at 619.)

The facts of Golden State I are instructive here. Like the taxi cab company in Golden State I, California cannabis businesses now face a Hobson’s “all or nothing” choice under AB 1291. If a cannabis business refuses to negotiate a labor peace agreement with a labor organization, it effectively loses the right to do business in California. But if the cannabis business negotiates a labor peace agreement, the union knows full well that it can hold out for significant concessions in exchange for its members giving up one of their most valuable economic weapons – the power to strike.

The U.S. Supreme Court’s decision in Chamber of Commerce v. Brown, 554 U.S. 60 (2008) is also instructive. At issue in Brown was California’s Assembly Bill 1889 (“AB 1889”), prohibiting certain private employers from using state funds to “assist, promote, or deter union organizing.” (Id. at 63 [quoting Cal. Govt. Code §§ 16645.1–16645.7].) The Court held that AB 1889 was unconstitutional. As explained by the Court, the current text of Sections 7 and 8 of the NLRA are amendments made to the NLRA in 1947 as part of the Labor Management Relations Act, also known as the Taft Harley Act, for the purpose of overturning earlier NLRB precedent. The NLRA was amended in in several key respects. First, it emphasized that employees “have the right to refrain from any or all” union activities. (29 U.S.C. § 157.) Second, it added Section 8(b), which prohibits unfair labor practices by unions. (29 U.S.C. § 158(b).) Third, it added Section 8(c), which protects speech by both unions and employers from regulation by the NLRB. (29 U.S.C. § 158(c).) Specifically, Section 8(c) provides:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.

With the amendments, Section 8(c) “manifested a “congressional intent to encourage free debate on issues dividing labor and management.” (Id. at 6-7.) That Congress amended the NLRA, rather than leaving to the courts the task of correcting the NLRB’s decisions on a case-by-case basis, is “indicative of how important Congress deemed such ‘free debate.’” (Id. at 7.) In addition, Sections 8(a) and 8(b) “demonstrate that when Congress has sought to put limits on advocacy for or against union organization, it has expressly set forth the mechanisms for doing so.” (Brown, 554 U.S. at 67.) Moreover, “the amendment to §7 calls attention to the right of employees to refuse to join unions, which implies an underlying right to receive information opposing unionization.” (Id.) “[T]he addition of §8(c) expressly precludes regulation of speech about unionization so long as the communications do not contain a ‘threat of reprisal or force or promise of benefit.” (Id. [internal quotation omitted].) Thus, based on these overriding principles, the Court concluded that “California’s policy judgment that partisan employer speech necessarily interfere[s] with an employee’s choice about whether to join or to be represented by a labor union” and struck down AB 1889. (Id. at 68 [internal quotation omitted].)

AB 1291 is arguably no different. By forcing unwilling cannabis businesses to negotiate and accept labor peace agreements, AB 1291 compels a result Congress deliberately left to the free play of economic forces. The NLRA does not allow state and local governments to interfere with employer rights to communicate with employees regarding unionization under Section 8(c). Nor does it allow state and local governments to “introduce some standard of properly balanced bargaining power . . . or to define what economic sanctions might be permitted negotiating parties in an ideal or balanced state of collective bargaining.” (Machinists, 427 U.S. at 149-50.) Yet, this is exactly what AB 1291 appears to do. Accordingly, AB 1291 may be unconstitutional.

1 A labor peace (aka a labor harmony agreement) is essentially a contract between an employer and an organized labor union in which the employer agrees to help the union organize the employer’s workforce (i.e., unionize) by providing, for example, certain information or agreeing not to interfere with the union organizing efforts, in exchange for the union’s agreement not to strike or cause other disruption in the employer’s workforce during a union organizing campaign. Because these agreements open the door to union activity within the workplace, they should not be entered into casually. Rather, unionization may result in increased labor costs, contractual contributions to union pension plans, loss of flexibility, and adherence to union rules set forth in a legally binding contract. In addition, once a union is recognized or certified as the collective bargaining representative of employees, it is practically impossible to terminate that relationship. Indeed, only after a costly and divisive decertification election can a workforce return to the merit-based and flexible non-union environment.

Copyright © 2023, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume IX, Number 296
  • Printer-friendly
  • Email this Article
  • REPRINTS & PERMISSIONS
Advertisement

Latest Legal News & Analysis

Graduation Goods Settlement: A Good Reminder of AGs’ Data Security Priorities
Sheppard, Mullin, Richter & Hampton LLP
IRS and Treasury Provide Guidance on the Excise Tax on Repurchases of Corporate...
Proskauer Rose LLP
Breathe Easy: U.S. EPA Seeks to Significantly Tighten Fine Particulate Matter...
Foley & Lardner LLP
Insurer Could Not Rely on Extrinsic Evidence to Circumvent Its Duty to Defend
Hunton Andrews Kurth
CMS Issues Long-Awaited Medicare Advantage RADV Final Rule
Sheppard, Mullin, Richter & Hampton LLP
Advertisement

TRENDING LEGAL ANALYSIS

NIST Publishes Artificial Intelligence Risk Management Framework
By
Epstein Becker & Green, P.C.
Key Federal PFAS Regulatory Developments in 2022 and 2023
By
Squire Patton Boggs (US) LLP
Media & Entertainment: 10 Legal Challenges for Companies in 2023
By
ArentFox Schiff LLP
ECHA Provides Updated Guidance on Testing Nanomaterials
By
Bergeson & Campbell, P.C.
Wisconsin District Court Rulings Signal Potential New Trend Favoring the Defense of...
By
Proskauer Rose LLP
The Wisconsin Supreme Court Keeps Wisconsin Weird and Applies the Common Law in Its...
By
Foley & Lardner LLP
Advertisement

Upcoming Legal Education Events

How To…Comply with Obligations to Caregiver Employees
Tuesday, February 7, 2023
Healthcare Fraud & Abuse: 2022 Year in Review
Tuesday, February 7, 2023
REACH 30/30 February 8, 2023
Wednesday, February 8, 2023
TSCA 30/30 Webinar - February 8, 2023
Wednesday, February 8, 2023

About this Author

Keahn Morris, Sheppard Mullin Law Firm, San Francisco, Labor and Employment Law Attorney
Keahn N. Morris
Associate

Keahn N. Morris is an associate in the Labor and Employment Practice Group in the San Francisco office.Keahn’s practice focuses on all areas of labor and employment law, with an emphasis on traditional labor law, high-stakes employment-related litigation, and proactive counseling of management-side clients. Recognized by Super Lawyers as a "Rising Star", Keahn was identified as a top rated labor and employment attorney in San Francisco in 2014, 2015, 2016, and 2017. He has significant experience in all aspects of labor-management relations law, including union corporate...

[email protected]
415-774-2934
www.sheppardmullin.com
Advertisement
Advertisement
Advertisement
National Law Review
  • Antitrust Law
  • Bankruptcy & Restructuring
  • Biotech, Food, & Drug
  • Business of Law
  • Election & Legislative
  • Construction & Real Estate
  • Environmental & Energy
  • Family, Estates & Trusts
  • Financial, Securities & Banking
  • Global
  • Health Care Law
  • Immigration
  • Intellectual Property Law
  • Insurance
  • Labor & Employment
  • Litigation
  • Cybersecurity Media & FCC
  • Public Services, Infrastructure, Transportation
  • Tax
  • White Collar Crime & Consumer Rights
  • Coronavirus News
  • Law Student Writing Competition
  • Sign Up For NLR Bulletins
  • Terms of Use
  • Privacy Policy
  • FAQs

 

As a woman owned company, The National Law Review is a certified member of the Women's Business Enterprise National Council

Legal Disclaimer

You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's  Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only. Any legal analysis, legislative updates or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.  

Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is www.NatLawReview.com  intended to be  a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional.  NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us. 

Under certain state laws the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.

The National Law Review - National Law Forum LLC 3 Grant Square #141 Hinsdale, IL 60521  Telephone  (708) 357-3317 or toll free (877) 357-3317.  If you would ike to contact us via email please click here.

Copyright ©2023 National Law Forum, LLC