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Marijuana Legality: The Quick(er) Version

A few days ago, I started writing a very long, very detailed post about marijuana legality state by state... and it got eaten by tumblr's drafts features.

This post is going to be the Cliff Notes version of that post.

First off, Wikipedia's Legality of cannabis by U.S. jurisdiction page is an excellent resource for this. It doesn't capture everything, but it captures a lot, and you can always go to linked pages for individual states and/or check the linked sources for more information.

The short(ish) version:

Under federal law, specifically the Controlled Substances Act, marijuana is a Schedule I drug and cannot be prescribed or possessed legally aside from a very tightly-controlled quota for scientific research purposes. This scheduling includes language stating that marijuana "has no currently accepted medical use" and "[t]here is a lack of accepted safety for use of the drug or other substance under medical supervision", which is... arguable.

There is a process for changing drugs, including marijuana, to a less restrictive schedule under the Controlled Substances Act or removing them as a controlled substance altogether. But that process hasn't happened for marijuana so far.

Technically, this supersedes state and local law on the subject; state law can be more restrictive than federal law, but not less restrictive, or else the whole idea of federal law governing the whole country is moot. Theoretically, that means that federal police could arrest anyone, anywhere, for marijuana possession under the Controlled Substances Act, regardless of what local authorities say on the matter.

Realistically, that's highly unlikely. Any case where someone gets arrested for marijuana in a state that says it's okay is practically asking for a Supreme Court case on the matter, and said Supreme Court ruling would inevitable be controversial and divisive, and right now everybody's content to just... pretend the federal law doesn't exist when the state says otherwise. Probably some years down the line such a Supreme Court case will indeed happen and cause a shift to the current murky and unstable status quo, but it's highly unlikely that said Supreme Court case will star you, random marijuana user. (And if it does, well, upside is there's bound to be a bunch of folks willing to represent you for free just to get in on the action!)

Also, the federal police are busy, and hey, if they don't have to worry about marijuana use in a large chunk of the country, that just gives them more time to go after other kinds of federal criminals.

So, if state law's what matters, what do the states say?

Again, I point you to the Wikipedia page outlining exactly this. (It's most of what I'm using for a resource here myself.)

Recreational use of marijuana is legal in 24 states (Alaska, Arizona, California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New Jersey, New Mexico, New York, Ohio, Oregon, Rhode Island, Vermont, Virginia, and Washington state), three U.S. territories (Guam, Northern Mariana Islands, and U.S. Virgin Islands), and Washington D.C. Note that Ohio's measure here is newly passed and doesn't actually take effect until December 7, 2023, three days from now.

Commercial distribution is legal everywhere that recreational use is legal except Virginia and Washington D.C.

Personal cultivation for recreational use is legal everywhere that recreational use is legal except Delaware, Illinois, New Jersey, and Washington state.

Recreational use is decriminalized in Hawaii, Louisiana, New Hampshire, and North Dakota.

Medicinal use of marijuana is legal in 38 states (the recreational use ones, plus Alabama, Arkansas, Florida, Kentucky, Oklahoma, Pennsylvania, South Dakota, Utah, and West Virginia), four U.S. territories (the recreational use ones plus Puerto Rico), and Washington D.C.

Medicinal use is decriminalized in Nebraska and North Carolina.

Iowa gets a special shout-out here for allowing medicinal marijuana, but not allowing any actual distributors of said medicinal marijuana in the state; medicinal marijuana patients need to go out-of-state to get their marijuana supplies, but those supplies remain legal upon bringing them back to Iowa.

Personal cultivation for medicinal use is legal everywhere that recreational cultivation is legal plus Illinois, Washington state, Hawaii, Oklahoma, and South Dakota.

Marijuana remains illegal for both medicinal and recreational use in ten states: Georgia (though several cities/counties in Georgia have decriminalized it), Idaho, Indiana, Iowa, Kansas, South Carolina, Tennessee, Texas, Wisconsin, and Wyoming, and also the territory of American Samoa. Everywhere but American Samoa has some exception for CBD oil, though, with limits on the percentage of THC present.

A number of Native American reservations have also legalized marijuana use, either recreational or medicinal.

Most of these laws have restrictions beyond just "it's legal". You might have to be 18 to purchase marijuana, or 19, or 21; there's generally a maximum amount you're allowed to possess, or grow, at one time; medicinal use might be restricted to specific symptoms or conditions outlined in the original law; details may vary about having it in a public place, or about the specific forms allowed.

Also, some laws specifically address potential effects of marijuana use within the state beyond simple criminality. Can marijuana use be considered in a child welfare case, and held against you as a parent? Can use of medicinal marijuana get you fired if you fail a drug test your employer gave you, or just because your employer doesn't like it? Does being fired for using marijuana count as being fired "for cause" for unemployment purposes? Can marijuana use disqualify you from accessing needed health care like organ transplants? Excellent questions! The answers will vary. Or they might not be specified in the original statute at all, which leaves it open for the courts to decide.

If you're going to purchase and/or consume marijuana, please, look up all the details of your local laws on the matter beforehand.

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Volunteer Work and Unpaid Internships: What's Legal?

What counts as "employment" might seem straightforward enough... until you're working for a non-profit, or as an intern.

What's the difference between volunteering for a non-profit and working there, besides the allowed pay rate? Can you work 40 hours during the week for your non-profit employer and then still volunteer for them over the weekends, too?

And what's the deal with unpaid internships? They're work, but they're not, and therefore they can be unpaid, despite minimum wage laws? How is that legal? When is that legal?

For that matter, what about those high school programs that involve working for an employer as part of a class? How does that work?

Most of the relevant law here is federal.

When it comes to "for-profit" employers, the Department of Labor has a handy dandy fact sheet explaining the law.

Unpaid internships and student work positions may potentially not qualify as "employees" under the Fair Labor Standards Act, which is the relevant law having to do with minimum wage, overtime, etc.

As per case law, the distinction comes from which party is the "primary beneficiary" of the arrangement. If the intern/student worker is benefiting more from the training and educational experience of their internship than the employer is benefiting from the work that they generate, then they are not considered an "employee" and do not need to be paid under the usual FLSA rules. On the other hand, if the employer is benefiting more from the work they're getting than the intern/student is from the experience, then they're an "employee" and need to be paid accordingly.

The court has made a list of seven factors to be considered when determining who's benefiting more from the arrangement, including things like "The extent to which the intern’s work complements, rather than displaces, the work of paid employees"--in other words, if the work the intern is doing would be done by regular employees if the intern wasn't there, that's a bad sign for the legitimacy of that internship's unpaid status. Other factors include the internship being tied to the school with coursework or credit, having educational training as part of the internship, etc. The intern is supposed to be learning from the internship--that's the whole point.

There are definitely industries where doing non-educational, entry-level work as part of an "unpaid internship" is commonplace, but under the FLSA, that's illegal, and some recent court cases involving big-name employers have involved substantial settlements for "unpaid internships" that didn't follow the FLSA rules.

Some states, like California and New York, have even more restrictive rules about unpaid internships, but the federal rules apply to unpaid internships throughout the United States.

As for non-profit volunteer work, well, the Department of Labor has a handy-dandy fact sheet for that one, too.

The non-profit charitable designation is not the only thing necessary to determine that someone can volunteer there; the volunteer work being done also has to be for a charitable rather than a commercial purpose. The fact sheet specifically mentions that volunteering in a gift shop likely isn't allowed even when the gift shop is for a non-profit organization, because the shop is itself a commercial enterprise and the work being done is commercial in nature.

As with interns/students, volunteer work becomes more suspect if it's displacing work that would otherwise be done by paid employees.

Also, if you work for a non-profit, you can volunteer for your employer outside of your regular work... but not by providing the same type of services you're employed to do. So, if you're employed as a marketer for an animal shelter, coming in on the weekends to clean cages and walk dogs would likely be perfectly fine volunteer work, but coming in on the weekends to draft the shelter's newsletter would likely be considered part of your regular employment, and thus subject to minimum wage and overtime rules.

That last restriction doesn't apply if the place you're volunteering for isn't your employer, though. So, if you're employed as a bus driver for the local school district, you can't volunteer to drive students around for field trips, but you can volunteer to be the driver for your local church's youth group trips, since the church isn't regularly employing you as a bus driver.

Another thing that can make volunteer work suspect is when benefits or bonuses are provided. Volunteer positions "working for tips" are usually breaking the law; things like providing free rounds of golf to volunteer caddies or free memberships/classes to volunteer gym trainers are also highly suspect.

There is some allowance for reimbursing volunteers for expenses incurred by their volunteer work, but this cannot be in the place of regular compensation and cannot include "reimbursements" for expenses that are not actually related to the volunteer work done.

[us-laws-you-should-know]

Work Expenses: Who Pays?

There are all sorts of work-related expenses out there that an employee might have to face, from the cost of their work uniform to the cost of cleaning their work uniform to bills for the cell phone they use for work calls to the cost of that laptop used for working from home.

The question is, under the law, when is the employer mandated to pay for such expenses, rather than leaving them to the individual employee to bear?

Summary: Under federal law, the only requirement is that expenses not bring employees' pay under minimum wage.

California and Illinois say the employer must cover "necessary expenditures and losses" including remote work equipment.

Montana, North Dakota, and South Dakota also say the employer must cover all the employee "expends or loses" due to work.

Washington D.C. says the employer must pay for required tools.

Iowa, New York, and New Hampshire require that the expenses be "authorized" by the employer or that employer and employee have an "agreement" beforehand for the employer to be liable for the costs. Iowa says such costs must be reimbursed within 30 days.

Minnesota requires that employee-paid work expenses be limited to $50 a month, and that the employer reimburse such costs at the end of the employee's employment.

Massachusetts requires that employers pay transportation expenses and the cost of uniforms specifically.

Federal law says only that if the employee's paying for expenses, that can't be used to effectively bring their wages below minimum wage level. So, if you're making minimum wage at a McDonald's, your employer can't then take the price of your work uniform out of your first paycheck, because then you'd effectively be making less than minimum wage.

This doesn't just apply to expenses directly paid to the employer, either; the statute specifically says that if the employee is required to buy their own tools required for a job, they have to be reimbursed if that would mean their pay going below minimum wage after deducting the cost of the tools from their pay.

But this only comes into play in connection to minimum wage. If your pay is high enough that your work expenses would still leave you above minimum wage, federal law doesn't say anything else making your employer liable for the cost.

But that's federal law. US law in general, and especially labor law, often has more specific restrictions within certain states, and this is no exception.

California law says that the employer has to pay for "all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties". In other words, if it's necessary for the job, under California law, the employer should be footing the bill. What counts as a "necessary expenditure or loss"? Excellent question. No definition is given for this in the statute, so it's all open for debate... though a recent court case suggests it includes remote working equipment, including for jobs that are normally in-person but went to remote work during the lockdown.

Illinois state law uses similar wording, with the employer paying for "all necessary expenditures or losses incurred by the employee within the employee's scope of employment and directly related to services performed for the employer." Illinois' statute does actually give a bit more definition to what counts as "necessary" here, however, and a 2023 amendment included specific factors to weigh when determining whether an expense is "necessary" and therefore should be paid by the employer. Like California, Illinois has specified that remote work equipment counts here.

Montana is similar as well, using the wording "all that he necessarily expends or loses in direct consequence of the discharge of his duties", as long as it's not "in consequence of the ordinary risks of the business in which he is employed." North Dakota's wording is nearly identical, with "all that the employee necessarily expends or loses in direct consequence of the discharge of the employee's duties as such" unless it's tools or equipment "also used by the employee outside the scope of employment". South Dakota also has similar wording, "all that the employee necessarily expends or loses in direct consequence of the discharge of the employee's duties".

Washington, D.C. law has the employer paying "the cost of purchasing and maintaining any tools required of the employee in the performance of the business of the employer."

Iowa's version is stricter, saying that the expense must be "authorized by the employer", but also sets a timetable, saying that such expenses must be reimbursed within thirty days' time. Similarly, New York says that the issue arises after there is an "agreement" between employer and employee about the expenses, and New Hampshire says that it must be "at the request of the employer".

Minnesota's got a different take on it--employers can make employees foot the bill, but once the employment ends, the employer has to pay the employee back for uniforms, equipment, supplies, and travel expenses that aren't just regular commuting. Also the initial out-of-pocket cost to the employee for such things can't be more than $50 a month. Although there's some weird exceptions and additional specifics for employees of motor vehicle dealers...

Massachusetts law specifically requires payment of "transportation expenses" and uniforms by the employer, with a definition given for what does and does not count as a uniform. The cost of uniform cleaning is covered if it requires "dry-cleaning, commercial laundering, or other special treatment".

Note that this is all assuming the employee would pay directly; laws vary somewhat if it is instead the employee charging (real, believed, and/or fraudulent) work expenses to a company card or account directly.

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About The Blog

The short version is:

This blog is to bring awareness to American laws that affect a significant portion of the US population, but that many Americans may not know the details of.

More details about what this blog is, what it isn't, and who's running it below the cut.

What this blog is:

It's about United States laws specifically. Sorry non-Americans. Hey, if this inspires you, I fully encourage you to set up a similar blog for your own nation or area! But fifty states plus federal law is plenty for me.

It's about things that affect a big chunk of the US population. Labor law will definitely come up time and time again, because for something that affects lots of Americans there's a lot of ignorance of the law, or outright misconceptions, floating around about how labor law works. But it won't just be labor law, either. It just can't be too niche of a topic; I want there to be a decent chance that, without specifically tailoring a post to any individuals out there, the audience will include a number of people affected by the laws being cited.

It's about the factual state of the laws in question, as of the time I make the post about them. I'll do what I can to cite sources, especially direct sources, where possible.

What this blog isn't:

This isn't political. We're not taking a stand on whether the law is right or wrong, just presenting what it currently is.

This isn't a news source. Updates might happen, if and when they feel needed. But there's always a chance outdated information will be posted, especially if you're looking at older posts.

This isn't necessarily how the system actually works. Sometimes, people and organizations break the law (citation needed). Sometimes it happens enough that breaking that particular law becomes commonplace in a whole industry or area. Sometimes those breaking the law set things up so that whistleblowers who point out their illegal activities won't do so well afterwards. Sometimes some or all of the individuals involved don't know that what's happening is against the law in the first place. (But as the old saying goes, ignorance of the law is no excuse... which is one reason I hope to reduce that ignorance through this very blog!) "Illegal" is not a synonym for "doesn't happen".

This isn't a business, or a government service, or a registered non-profit. I'm one person sharing some information in my free time, that's all. If you like what I'm doing... well, I did turn tipping on. Maybe I'll break out a Kofi too.

This isn't legal advice. I am not a lawyer, and I am definitely not your lawyer. If the laws presented here affect you, I strongly encourage you to do your own research, and/or contact an actual lawyer, before taking action. Heck, if this blog gets people poking around government websites to find out the details of the laws featured here, that's a win in my book.

About The Blogger:

I may not be a lawyer, but I do work in the legal system. Specifically, I'm employed as and trained to be a paralegal. My usual definition of what paralegals do is "everything lawyers do, except for the things that only lawyers can do", which is a little opaque, so allow me to expand upon it a bit:

Imagine a lawyer at work. Think of all the things that must be done for the practice of law. Going to court and going in front of the judge, sure. Giving clients legal advice, of course. Communicating with the other side, and with clients, and perhaps even with the court. Filing documents. Organizing documents. Researching whether the law's on your side or not. Meeting new clients and getting together the details about their case.

Now, the big two things there that only lawyers can do are representing someone in court and giving legal advice. But the rest of it--letters or phone calls to opposing counsel, or clients, or even the judge; filing documents with the court; organizing documents (so much organizing documents); new client intake; even legal research--can all be done by paralegals, and in practice, a lot of it often is.

I specifically work in the field of family law, though unfortunately a lot of that is likely too niche and too variable to fit into this blog's posts, and have experience with the laws of two different states within the field of family law.

So I'm just another tumblr blogger, yes, but I actually do know a bit about the legal system, both in theory and in practice.