Robert Kenney worked for Helix TCS in Colorado as a security guard. Helix classified him as an exempt employee so did not pay him overtime. Kenney sued under the Fair Labor Standards Act (FLSA) alleging he was actually a nonexempt employee and, as such, should have been paid overtime for the hours he worked over forty in a workweek, which he claimed he worked regularly. Kenney brought his lawsuit as a collective action, on behalf of himself and other similarly situated security guards employed by Helix.

So far, this is a routine case. Here’s the twist.

Helix provided security services primarily to clients engaged in the marijuana business, which is legal in Colorado. Helix moved to dismiss the lawsuit against it claiming that “the FLSA does not apply to workers such as Mr. Kenney because Colorado’s recreational marijuana industry is in violation of [the federal] Controlled Substances Act.” Helix tried to argue that Congress would not want to reward those engaged in activities which were so clearly in violation of federal law; in essence, drug traffickers.

The Tenth Circuit Court of Appeals was not impressed. Rejecting Helix’s “cherry-picking” from the two laws, the Court concluded that “applying FLSA protections to workers such as Mr. Kenney will not grant these individuals any surplus benefit that they cannot easily obtain elsewhere, but the reverse would excuse Helix from FLSA costs and obligations and thereby allow it to reap additional benefit from its [Controlled Substances Act] violations.”

This was a creative argument to be sure, but the public policy behind the FLSA is tough. If you are thinking you are going to just take a pass, you might want to get some advice in advance.

By Kristen L. Brightmire, kbrightmire@dsda.com