In Moore v. XWELL, Inc., No. 650891/2024, 2024 WL 5057101 (N.Y. Sup Ct, New York County Dec. 6, 2024), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s claim of discrimination asserted under New York Labor Law § 201-d.
Here, plaintiff alleges that, on June 13, 2023, her managers told plaintiff that she smelled of cannabis and directed her to leave work, and that when she returned to work two days later, she was terminated “for smelling like cannabis.”
From the decision:
Labor Law § 201-d prohibits employers from “discharg[ing] or otherwise discriminat[ing] against an individual . . . because of [their] legal use of consumable products, including cannabis in accordance with state law, [outside of] work hours, and off of the employer’s premises” (Labor Law § 201-d). It also provides, however, that “an employer shall not be in violation of this section where the employer takes action [because] the employee is impaired by the use of cannabis, meaning the employee manifests specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position” (id.).
Defendants argue that plaintiff’s Labor Law § 201-d cause of action must be dismissed pursuant to CPLR § 3211(a)(2), as this court lacks subject matter jurisdiction over Labor Law § 201-d claims, which fall within the exclusive authority of the Public Employment Relations Board (PERB); and pursuant to CPLR § 3211(a)(7) “[b]ecause Plaintiff expressly admits she was fired for ‘being impaired’ when she arrived to work” (NYSCEF Doc No 7). Plaintiff argues that her marijuana use was permissible because she smoked outside of work hours and off the premises; defendants failed to establish that plaintiff was impaired within the meaning of the statute, and that she denies admitting to such impairment; and that this court does have subject matter jurisdiction over this cause of action, as the underlying dispute is not related to union animus.
There are certain categories of persons whose claims are evaluated by the PERB or who are excluded from the protections of Labor Law § 201-d, such as “public officers,” “employees of a state agency,” “employees of any employer [subject to] a collective bargaining agreement,” or employees whose impairment could “interfere with an employer’s obligation to provide a safe and healthy work place, free from recognized hazards, as required by state and federal occupational safety and health law” (Labor Law § 201-d). Defendants’ subject matter jurisdiction argument fails because, unlike the plaintiffs in the cases cited by defendants, plaintiff’s work does not fall within any such enumerated categories (Kurec v CSX Transp., Inc., 2020 U.S. Dist. LEXIS 205929 [NDNY 2020] [plaintiff oversaw track maintenance of railroads subject to federal safety regulations]; Ifill v N.Y. State Court Officers Ass’n, 655 F Supp 2d 382 [SDNY 2009] [plaintiff was a court officer and party to a collective bargaining agreement]; Matter of Martinez v State Univ. of N.Y., 294 AD2d 650 [3rd Dept 2002] [plaintiff was a State employee]). Therefore, plaintiff’s Labor Law § 201-d will not be dismissed pursuant to CPLR § 3211(a)(2).
Plaintiff adequately states a claim under Labor Law § 201-d by alleging that defendants terminated her employment based on legal activities she engaged in outside of work.1 In their motion, defendants do not state how plaintiff “manifest[ed] specific articulable symptoms while working that decrease[d] or lessen[ed] [her] performance of the duties or tasks of [her] job position”; rather, they state in conclusory fashion that plaintiff “was impaired in performing her duties” and note that “she smelled like cannabis” (NYSCEF Doc No 7).2 This is insufficient to support dismissal of plaintiff’s claim pursuant to CPLR § 3211(a)(7).
Based on this, the court denied the part of defendants’ motion seeking to dismiss plaintiff’s third cause of action pursuant to Labor Law § 201-d as to defendant XWELL.