The legalization of marijuana in California prompted the formation of a wide variety of cannabis businesses throughout the state.
Most recently, companies touted as “uber for weed” worked to gain popularity in the market by offering convenient delivery services to customers.
Individuals hired as cannabis delivery drivers deliver pot for businesses throughout the state.
Marijuana Delivery Services
A cannabis delivery service operates similarly to a brick and mortar dispensary. In 2018, with the passing of Proposition 18, anyone aged 21 and over may call in for marijuana delivery or order online.
The reality of the global pandemic COVID-19 increased marijuana delivery services as health agencies urged individuals to stay indoors.
Within two years, several hundred “uber for weed” businesses have popped up, including the following:
- Eaze,
- Leafly,
- Medmen,
- Kushfly,
- Speedweed, and
- Pot Valet.
The influx in marijuana delivery services created a need for dispensary delivery drivers.
While many of these companies may identify their cannabis delivery drivers as independent contractors, this delivery driver misclassification is common.
Employees vs. Independent Contractors
An employer classifies workers as employees or independent contractors. Employees receive multiple benefits such as employer paid payroll taxes on employee earnings, unemployment insurance, and workers’ compensation.
Additionally, employees enjoy protection from discriminatory practices, minimum wage laws, and overtime hours.
While independent contractors enjoy the freedom of setting their hours and other flexible features, they do not receive the same protections and benefits as employees.
An employer may not classify a worker as an employee or independent contractor as they choose.
The classification must reflect the relationship that exists between the two parties. For tax purposes, employees receive W2 forms from their employers and independent contractors receive 1099 forms.
The Dynamex Decision
The recent passing of AB5, often referred to as the “gig worker law,” changed the classification of independent contractors in California.
This law mirrors the holding in a 2018 California Supreme Court case called Dynamex Operations West, Inc. v. Superior Court.
The Dynamex Decision changed the then-existing independent contractor analysis and replaced it with a shorter and more restrictive analysis.
The following test determines whether a worker is an independent contractor:
- The worker is free from hiring party’s control and direction regarding the performance of work;
- The worker performs services outside the normal scope of business of the hiring party; and
- The worker customarily engages in the same trade, occupation, or business as they are performing for the hiring party.
The second and third prongs specifically make it very difficult for businesses to classify individual workers as independent contractors.
How Should a Dispensary Classify a Cannabis Delivery Driver?
As a weed delivery driver for the numerous “uber for weed” companies operating in California today, you may wonder whether your classification as an independent contractor is correct.
The Dynamex Decision helps in figuring out whether you’ve been subject to California delivery driver misclassification.
- Does the dispensary delivery company control the performance of your work by directing you where to deliver cannabis? One may presume that your weed delivery company regularly tells you where and how to deliver weed to customers.
- Would cannabis delivery services be within the scope of services a cannabis delivery company provides? Cannabis delivery services would be within the scope of a cannabis delivery company.
- Do you regularly perform delivery driving services for various companies? The answer to this question may vary from person to person. One cannabis delivery driver may work another job in a completely different industry. Another weed delivery driver may not work another job and sustains a living working only for a single cannabis delivery company.
An experienced employment attorney in California can help you evaluate your circumstances and determine whether you might have been misclassified.
What Can I Recover for California Delivery Driver Misclassification?
If your position as a dispensary delivery driver is misclassified, you may be entitled to recover damages for the following:
- Unearned minimum wage and overtime pay,
- Rest break and meal penalties,
- Unearned benefits, and
- Legal costs and fees.
Determining whether your employer misclassified your position as a cannabis delivery driver is a complicated legal matter.
Contact Us
The attorneys at Workplace Rights Law Group possess nearly 75 years of combined experience representing clients in complex employment law cases.
The cannabis industry is rapidly growing, and therefore it’s essential to understand the rights and benefits afforded to weed delivery drivers.
If you believe you have been misclassified in your position as a dispensary delivery driver, contact the attorneys at Workplace Rights Law Group today to discuss your employment facts.
We offer a free case review and analyze your situation to help you on the right path forward. Contact us or call our firm at (818) 844-5200 today!
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Theo Khachaturian
Theo is a trial & appellate lawyer whose practice has emphasized wage-and-hour class actions, business disputes, wrongful termination, discrimination, harassment, and intellectual property theft. He has tried civil cases and argued before various California Courts of Appeal.