Washington could be the third state to require overtime pay, leveling the playing field nationwide for 'second-class workers.'
Washington could be the third state to require overtime pay, leveling the playing field nationwide for 'second-class workers.'
November 6, 2019
May 11, 2020 update: The governor of Washington today signed into law a bill that makes ag workers in the state eligible for overtime pay.
November 5, 2020 update: The Washington state Supreme Court today ruled that farmworkers are entitled to overtime pay, in response to the lawsuit against DeRuyters Brothers Dairy by dairy workers.
Farmworkers perform some of the most arduous jobs, often in extreme heat, with heavy equipment, large animals, and a high risk that they will be exposed to hazardous chemicals. And yet—unlike the vast majority of Americans who get paid time-and-a-half when they work more than 40 hours per week—farmworkers are generally excluded from federal and state-level overtime pay.
Now, a court battle in Washington state could move the needle on the issue. The state’s Supreme Court is poised to decide whether excluding farmworker from overtime pay is unconstitutional. The court heard oral arguments in the case last week, and will likely issue its decision in the next 4-6 months. While worker advocates said the move is long overdue, spokespeople from the agricultural industry argued that eliminating the exclusion would place an undue economic burden on growers.
The ruling could affect about 100,000 workers. If the court rules for the workers, Washington would become just the third state to require farmworkers’ employers to pay overtime. In California, the nation’s top agricultural state, agricultural laborers began to qualify for the benefit this year, and in New York, overtime will begin in 2020—though the exact definition of overtime differs in each state.
While New York and California advocates went the legislative route to add overtime benefits, Washington’s court decision could have a broader impact because it would set a legal precedent.
Advocates say the court’s decision would right a historic wrong and help a hard-working group of low-income workers. They are also trying to advance federal legislation that would require a similar law to go into effect across the nation. The Fairness for Farm Workers Act is sponsored by Kamala Harris (D-CA) in the Senate and Raul M. Grijalva (D-AZ) in the House of Representatives, though the bill has a slim chance of passing.
The fact that farmworkers often work long hours without any difference in hourly pay is “based in our racist history of excluding farmworkers from basic work and safety protections,” said Columbia Legal Services attorney Lori Isley, a lawyer for the plaintiffs, who presented oral arguments in the case. “These are folks doing some of the most dangerous work and they really should be given the labor protections that other workers receive.”
Agriculture indeed ranks among one of the most hazardous industries, and the most dangerous for working children. While farmworkers reported working 45 hours per week on average, according to the Department of Labor, those harvesting field crops and employees on dairy farms reported working an average of 54 hours a week.
Racist Genesis of Farmworker Exclusions
Farmworkers were first excluded from the Fair Labor Standards Act (FLSA) when it passed in 1938, and historical records show that that exclusion was racially motivated. In a 1987 article for the Texas Law Review, attorney Marc Linder detailed how such exclusions were routine in New Deal legislation and paved the way for discrimination in the FLSA. To enact the social and economic reforms of the New Deal, Linder wrote, President Roosevelt and his allies had to compromise with Southern Congressmen who aimed to “to perpetuate a system of racial subjugation” and perceived the new overtime laws as a threat to established practices.
“There has always been a difference in the wage scale of white and colored labor…. You cannot put the Negro and the white man on the same basis and get away with it,” Representative J. Mark Wilcox of Florida noted at the time, according to the 1937 Congressional Record.
As a result, farmworkers—most of whom were African Americans and people of color—were excluded from the benefits of the National Industrial Recovery Act, the Social Security Act, and the collective bargaining protections of the National Labor Relations Act. They also were harmed by the Agricultural Adjustment Act, which included a crop reduction policy that paid farmers to take land out of production to raise farm product prices, but often displaced Black tenant farmers and sharecroppers, Linder wrote.
And when the FLSA was passed, they were also exempt from the minimum wage, overtime, and child protection provisions. The primary beneficiaries of those exclusions were the large agricultural employers in the South and in California, Arizona, and New Mexico, which depended upon a steady supply of cheap labor.
Since then, some of those exclusions have been remedied, while others persist. For example, agricultural employers (except for small farms) are now required to pay minimum wage to most farmworkers. But they don’t have to pay them overtime. Meanwhile, farmworkers are still excluded from the FLSA’s child protection rules and don’t have the right to collective bargaining.
‘Overtime Protects Farmworkers’
The overtime case in Washington state stems from a class-action lawsuit brought in 2016 against DeRuyter Brothers Dairy in Yakima County. Two workers claimed the dairy failed to provide meal and breaks and didn’t pay for some of the hours they worked, even though they often put in nine- to 12-hour days, six days a week. Most of the wage claims have since been settled, except for overtime pay.
In court, attorney Lori Isley asked the judge to declare the exclusion from overtime for all of the state’s farmworkers unconstitutional. She said Washington’s 1959 Minimum Wage Act simply adopted the federal overtime farmworker exemption without examining its racist roots. Today, she said, the exclusion is still discriminatory because it deprives farmworkers, most of whom are Latinx, of equal protection.
But Isley’s key argument centered on the Washington state Constitution’s unique mandate for legislators to “pass necessary laws for the protection of persons working in mines, factories, and other employments dangerous to life or deleterious to health.” The original purpose of overtime pay, she said, was “to create an incentive not to have long hours of work injurious to health.” In other words, the goal was to avoid overworking, which leads to more fatigue and strain on the body and increases the risk of injury and death.
“Excluding farmworkers who are doing some of the most dangerous work in our state violates their fundamental rights,” Isley told Civil Eats.
The exclusion, Isley said in court, also violates a broader right to pursue one’s occupation and pursue work in reasonable safety.
Farm Industry: Overtime Doesn’t Make Sense in Agriculture
The lawyers representing the agricultural industry in the Washington case disputed the dangerous nature of agricultural work. They told the judges that agriculture is ill-suited to overtime pay and growers will struggle to absorb the costs. Farming is seasonal and dictated by the vagaries of weather, Timothy O’Connell, an attorney representing the Washington Dairy Federation and Washington Farm Bureau, told the court. Growers and dairy owners do not set prices for their goods while the costs of labor continue to increase. And farmworkers typically want to work longer hours to maximize their earnings.
“When we impose this economic burden… [it] will not lead to a single hour less being worked, only it will cost more,” O’Connell said.
The fact that farmers have been dealing with a rising minimum wage and labor shortages in recent years makes overtime pay even more difficult to absorb, Washington Farm Bureau CEO John Stuhlmiller told Civil Eats.
But Isley said other seasonal jobs—such as retail or construction work—require overtime. And she pointed to California as a model of growers adapting to paying overtime while remaining profitable.
“If California growers can do it and comply,” she said, “having Washington make the same requirement would promote fair competition.”
However, Stuhlmiller pointed out that Washington growers face a different market. They also fear the court ruling could be retroactive (there’s a three-year statute of limitations for wage claims). “That could mean millions of dollars to pay out in an industry that doesn’t set its own prices,” Stuhlmiller said. “We want our members to continue to feed the world, but the only way they can do it is if they can afford doing it and feeding their own families.”
The State-by-State Fight to Secure Overtime
Securing overtime pay for farmworkers state by state has been a long, arduous battle, labor advocates say.
In the mid-1970s, the United Farm Workers (UFW) in California won overtime for farmworkers after they had worked 10 hours in one day or 60 hours in one week. But securing overtime pay beyond the eight-hour threshold in 2016 was one of the union’s toughest legislative fights, said UFW spokesman Marc Grossman. A similar bill was vetoed by a previous governor in 2010; another was killed during the final vote in 2012.
While laws to boost collective bargaining rights or increase protection against intimidation during organizing campaigns affected only a small number of unionized workers, eight-hour overtime affected all of the state’s farmworkers and all growers, Grossman said.
“It generated greater opposition than previous union legislative proposals,” he said. The 2016 bill initially failed and it took a second try months later to get it passed by a slim margin, making California the first state to require overtime for farmworkers. It phases in the 8-hour day/40-hour week overtime pay over several years, between 2019 to 2022. This year, overtime wages are required after working nine-and-a-half hour days or 55-hour weeks. The rule initially applies only to businesses that employ more than 25 people; smaller agricultural employers have until 2022.
The law’s impact is hard to estimate thus far, but there have been few reports of growers skirting the rules or cutting workers’ hours and earnings (which farmers argued would happen prior to the bill’s passage), said Armando Elenes, the secretary treasurer of UFW. The group that has most benefited, he said, are irrigators, who were exempt from the previous overtime rules and usually work 10- to 12-hour shifts moving irrigation pipes, repairing hoses, and more.
While Elenes said piece-rate workers do the bulk of farm labor in the state and won’t see much overtime, (they tend to work only six to seven hours per day at high speed and are paid by the weight or the bushel), some hourly farmworkers, such as those working with table grapes or stone fruit, as well as year-round employees, dairy workers, and equipment operators, may see benefits.
A few rogue employers have gone around the rules by having workers work for one labor contractor during the week and for a second one during the weekend or working in the fields and then in the packing house while listing two different employers, he said. But those are isolated cases.
“The biggest grumble I’ve heard (from growers) so far is they want employers in other states to do the same,” said Elenes. “They want to level the playing field so that they can compete on quality.”
In New York, it took more than two decades of farmworkers fighting to secure legislation that would end their exclusion from the state’s labor protections enacted in the 1930s. In May, a state appeals court ruled their exclusion was unconstitutional. And in July, New York Governor Andrew M. Cuomo signed the Farm Laborers Fair Labor Practices Act, which grants farmworkers overtime pay, a day of rest each week, and the right to collective bargaining, disability benefits, paid family leave coverage, unemployment benefits and other labor protections. The law will take effect on January 1, 2020.
But as a result of pushback from New York state growers, who argued the law would be a “death sentence,” the original bill’s overtime language was watered down. While it originally mandated overtime after 40 hours, the approved legislation requires overtime after 60 hours. It requires that farmworkers be given at least 24 consecutive hours of rest each week—and workers who voluntarily agree to work on a day of rest must be compensated overtime pay at one and a half times the regular rate. The bill also includes a no-strike clause, another major concession to farmers who argued it’s needed to prevent work stoppages during planting and harvest seasons.
If the Washington case results in overtime pay for Washington’s farmworkers, it could help raise awareness about the issue on the national stage. The hope, say advocates, is that federal legislation could enact national overtime protections for farmworkers and remove the exclusion from federal law. The Fairness for Farm Workers Act would affect about 2.5 million farmworkers and would phase in over a period of four years. The bill also has the support of more than 100 social justice and labor organizations, including the National Association for the Advancement of Colored People and the Leadership Conference on Civil and Human Rights. Senator and democratic candidate Elizabeth Warren has also pointed to the bill as one of several she would devote attention to if elected president.
Warren’s labor reform plan mentions the bill alongside the proposed Domestic Workers Bill of Rights (which was also introduced by Senator Harris) as a way to remedy laws that were “originally motivated by outright racism or sexism.”
Grossman, the UFW spokesman, echoes that sentiment. For workers, he stresses, overtime pay isn’t just about more money in their pockets, “They no longer want to be treated as second-class workers,” he said.
Top photo: Migrant workers load cucumbers into a truck in Blackwater, Virginia. (Photo CC-licensed by Bread for the World.)
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