Has Jeff Sessions Filed An Amicus Brief?

In a blog titled One Toke Over the Line, Mark Tabakman describes a case in which an employer defends an FLSA lawsuit by asserting that it is in an illegal business and therefore immune to suit. The issue involves marijuana use, but only peripherally. In Kenney v. Helix TCS, currently before the Tenth Circuit, the plaintiff claimed he worked overtime and was not paid properly. The defendant, a Colorado company that furnishes security services to cannabis growers and sellers, moved to dismiss, arguing that its workers are not entitled to overtime under the Fair Labor Standards Act because their work is illegal under federal law. The company’s counsel made the argument that the case cannot go forward because the FLSA only applies to legal businesses, and in effect, all job functions engaged in by the workers amount to trafficking in illegal drugs. The author calls the matter “fascinating, because it highlights the tension between a state legalizing cannabis and its continuing illegality under federal law.”