Overtime for farm workers

Workers pick daffodils on Friday in a field west of Burlington. A bill is moving forward in the state Legislature that would require employers pay overtime to agricultural workers.

A measure requiring employers to start paying farmworkers overtime over a three-year phase-in period is moving forward in the state Legislature. 

With bipartisan support, the Senate voted 37-12 on Tuesday to pass Senate Bill 5172

The two Republican and one Democratic senator representing parts of Skagit County voted in support of the measure, though they disagree on the individual components of the bill.

The bill makes agricultural workers eligible for overtime pay for the first time in 70 years, and includes protections for dairy farmers from retroactive overtime pay lawsuits.

Labor, farm industry groups react

Senate Bill 5172 phases in overtime pay for farmworkers over three years.

In 2022, agricultural employees must receive overtime pay — which is 1.5 times their regular hourly rate — if they work more than 55 hours a week.

In 2023, they must receive overtime pay after 48 hours. In 2024, overtime pay is required after 40 hours, a rule that already applies to most workers in the state.

Agricultural workers have been long exempted from overtime standards in state and federal labor laws.

"This has been a historical wrong that has been done to farmworkers, and this bill tries to rectify that," said Edgar Franks, political director of Burlington-based farmworker union Familias Unidas por La Justicia.

He said it's unfair that the state's farmworkers — the vast majority of whom are Latino — have been excluded from benefits afforded to workers in other industries.

"Why are you excluding a certain population from benefits such as overtime because of past wrongs?" he said. "If so, we have to fix it now."

The Senate bill states that farmworkers excluded from overtime pay are some of the state's poorest workers, and that the COVID-19 pandemic has only made their situation worse.

"A United States department of labor study in 2016 found that nationally, 30 percent of farmworker families live below the poverty line, almost double the poverty rate of American families," the bill states.

But farm industry groups say that requiring overtime pay for agricultural workers will hurt both farmers and farmworkers.

Bre Elsey, associate director of government relations for the Washington Farm Bureau, said some farmers may not have the money to pay overtime and will cut workers' hours. 

"Farmers operate on incredibly tight profit margins, we are tied for the highest wage in the nation," she said. "The profits in Washington agriculture are some of the slimmest in the nation."

Elsey said the Farm Bureau supported the bill that passed the Senate on Tuesday to avoid an even worse situation for farmers.

An earlier version of the bill would have made farmers in all types of agriculture potentially liable for up to three years of retroactive overtime pay.

"The Farm Bureau had been working really hard in the last month with all the parties negotiating this bill to a point where everyone can live with it," Elsey said. 

She said one key piece was negotiating the phased-in approach to overtime pay to give farmers more time to adjust.

Alan Schreiber, executive director of the Washington Blueberry Commission and a farmer in Eastern Washington, said the rules will make it difficult for Washington farmers to compete against growers in other states and other countries who don't have to pay their workers overtime.

"It’s not like buyers are going to start paying Washington (farmers) more," he said. "Our labor is a huge cost. And to have your labor go up by 50% is nightmarish."

Schreiber said farmers may turn to machine harvest of crops such as blueberries — which are grown in Skagit County — to get by with fewer workers.

He agrees with Elsey that a phased-in approach will make the change more manageable. 

"The phase-in will help us adjust and is really, really important," Schreiber said. "And if this bill passes, we’ll declare victory and go home, even though it will end up costing a lot of money and making us less competitive."

Court rules on OT pay in agriculture

The question of overtime pay in agriculture stemmed from a state Supreme Court case involving dairy workers. On Nov. 5, the court ruled that the state's longtime exemption of agricultural workers from overtime pay requirements was unconstitutional.

The court left open the question of whether dairy farms could be sued retroactively for up to three years of overtime pay.

Retroactive pay lawsuits could have a devastating impact on the state's dairy farmers and would punish farmers unfairly for following the law at the time, farmers and industry advocates said previously.

The Washington Dairy Federation estimated that dairy farmers stood to lose between $90 million and $120 million if they had to pay up to three years of retroactive overtime wages. 

Concern over dairy farmers owing up to three years of retroactive overtime pay motivated state Sen. Keith Wagoner, R-Sedro-Woolley, to co-sponsor the original version of Senate Bill 5172. He said the original bill intended to protect dairy farmers from having to pay retroactive overtime following the Supreme Court ruling. 

Democrats, who are in the majority in both the Senate and House, added the sections requiring overtime pay in agriculture.

Wagoner said he voted for the bill because it was the best the Republicans could negotiate for farmers.

"It's not very good news for farmers," he said. "I think in the long term, it's not going to be good for farmworkers because jobs are going to go away."

Wagoner said the new rules may lead farmers to adopt more automation.

"The more we lay these requirements on employers and treat them as bad guys who have to be reined in, the way they react is figuring out ways to save money," he said.

Sen. Liz Lovelett, D-Anacortes, also voted for the bill. She said the bill reduces the liability and financial risk for dairy farmers, and recognizes the importance of farmworkers in the state.  

"We quite literally would not be able to survive without their hard work, but they are the some of the only workers who are not eligible to receive compensation for putting in more than 40 hours a week," she said in an emailed statement.

Lovelett said the bill also makes clear that workers in other agriculture industries besides dairy are eligible for overtime pay following the court's decision. 

"The transitional approach of this bill provides clear expectations for both employers and workers," she said. 

She said while adjusting to the new requirements will be challenging, the phased-in approach will give farms time to comply. She said one idea is a "mitigation fund" to help smaller farmers with financial hardships.

Next steps

As the bill moves to the House for consideration, farm groups are trying to add a provision that provides flexibility for busy harvest times. 

Elsey, with the Washington Farm Bureau, said the idea is to create a 12-week period each year when overtime pay wouldn't start until 50 hours. 

"It provides a cushion for farmers with crops like berries and fruit, a lot of types of crops that need to be harvested in a tight window, and gives farmworkers the ability to have extra work hours," she said. 

She said many other states recognize busy harvest times in their labor laws. 

"It’s the recognition that agriculture has the seasonal component, and the reason why the overtime exemption existed in the first place," Elsey said.

A win for dairy farmers

The Senate's passage of the bill gives protections to dairy farmers from retroactive pay lawsuits — the intent of the original legislation.

Scott Dilley, communication director for the Washington Dairy Federation, said more than 30 dairy farms statewide have been sued for retroactive overtime pay since the court's ruling in November. 

"We had farmers sued for following the law. It didn't make sense, was fundamentally unfair, and we are glad to see the Senate retained a fix for that," he said.

In January, dairy farmers began paying overtime to employees who work more than 40 hours, following the court's ruling.

Two Skagit County dairy farmers told the Skagit Valley Herald last month that while the new rules are frustrating, they have been able to adjust.

— Reporter Jacqueline Allison: jallison@skagitpublishing.com, 360-416-2145, Twitter: @Jacqueline_SVH

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