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Cresco Labs Faces OT Suit Over Workers' Time Donning PPE

By Sarah Jarvis · April 20, 2021, 7:53 PM EDT

Two former Cresco Labs employees have filed a proposed class and collective action in Illinois federal court alleging the cannabis company failed to compensate workers for time spent putting on and taking off required personal protective equipment.

Former cultivation employees Janice Dutcher and Stacy Negley said in Monday's complaint that they and other workers had to arrive at their facility at least 12 to 16 minutes early to undergo mandatory health screenings and to put on company-issued PPE required for safety and to protect the cannabis from contamination. They spent three to five minutes after their shifts taking off their equipment, they said, including removing their masks, hair nets, arm sleeves, gloves, scrubs and protective shoes and disposing of certain PPE.

The ex-employees said Cresco allowed them to clock in up to five minutes early, but it took them longer than five minutes to complete the "mandatory pre-shift donning process," so they had to do it before clocking in. Cresco enforced policies that rounded employees' punch-in times up to their scheduled start times, so even if they clocked in early, the company didn't begin paying them until their scheduled start times, they said.

"Since plaintiffs and similarly situated employees regularly worked 40 or more hours per week, these policies also deprived them of overtime pay," the workers said.

Dutcher and Negley — who worked in a Massachusetts cultivation center and dispensary from January 2020 to November 2020 and from August 2019 to December 2020, respectively — want to represent two nationwide classes of current and former employees who were required to put on and take off PPE before and after their shifts, as well as a Massachusetts class.

The workers argued that the mandatory pre-shift and post-shift time to put on and take off PPE is compensable because it was "an integral and indispensable part" of their work activities. They said Cresco was contractually obligated to pay them for that time at their regular hourly rates.

Cresco also did not provide the workers with complete, 30-minute meal periods, because the company required them to return to their work areas before the end of their unpaid meal breaks and to spend off-the-clock time putting on fresh face masks and other PPE so they could start working right at the end of their scheduled lunch breaks, according to the complaint.

"The fact that Cresco deliberately chose not to pay plaintiffs and the cultivation employees for this work, and that the off-the-clock work was performed before and after the cultivation employees' scheduled work shifts, does not somehow relieve Cresco of its contractual obligations to pay the cultivation employees for this time," Dutcher and Negley argued.

According to the suit, the cultivation employees include "cultivation agents, edibles agents, gardening agents, kitchen agents, manufacturing agents, packaging agents and processing agents."

The suit includes counts of failure to pay overtime wages under the Fair Labor Standards Act, violation of the Massachusetts Overtime Act and Massachusetts Wage Act, breach of contract and unjust enrichment. The workers are seeking damages, liquidated damages, pre- and post-judgment interest, attorney fees and costs.

"We expect cannabis companies to treat their employees fairly and comply with state and federal wage and hour laws like all other employers," said Matthew L. Turner of Sommers Schwartz PC, counsel for the workers. "We intend to hold Cresco accountable for requiring their dedicated employees to work off the clock."

A representative of Cresco did not immediately respond to a request for comment Tuesday.

Dutcher and Negley 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.

Counsel information for Cresco was not immediately available Tuesday.

The case is Janice 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.

--Editing by Aaron Pelc.

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