New Overtime Laws for Agricultural and Dairy Workers

Under a new state law, agricultural workers in Washington will be able to earn overtime pay starting on January 1st, 2022, according to a press release from the Washington State Department of Labor and Industries (L&I). Dairy workers in Washington were eligible to receive overtime starting July 25th. Overtime is at least 1.5 times the employee’s regular pay. 

 

The overtime standards for agricultural workers will be gradually phased in. In January 2022, the overtime threshold will be 55 hours. In January 2023, the overtime threshold will be 48 hours. In January 2024, the overtime threshold will be 40 hours. The law also bars employees from seeking retroactive payments for overtime worked prior to the law going into effect. 

 

Agricultural workers, including piece-rate workers, must earn the state minimum wage of $13.69 an hour in 2021. In 2020 the Washington State Supreme Court ruled in Martinez-Cuevas v. DeRuyter Brothers Dairy, Inc. that there was no reasonable grounds for dairy workers to be exempt from overtime, which was part of the background for the new law.

 

Tony Burnett, orchard manager, said that he doesn’t make enough money to be able to pay a lot of overtime. He owns 100 acres of orchards in the Wenatchee valley and another 70 acres in Quincy. Part of the issue is that Burnett doesn’t get paid for his product for a year. 

 

He said that his fruit is taken with many different growers to storage and stored for a year in warehouses before it is sold. After everything is sold, the warehouses tally up all the expenses and get an end of the year settlement to the growers. If anything goes wrong with the crops, he said, it could push farmers into bankruptcy. 

 

At the same time, the overtime exemptions are put in place to protect workers. Cristina Rogriguez, Agricultural Employment Specialist at L&I, said that the overtime is phased in over three years to help agricultural employers be able to adjust to the new law. 

 

“Agricultural overtime has been a topic within the agricultural sector that was up for discussion for quite a few years,” Rodriguez said. 

 

Rodriguez said that she had heard a variety of explanations about the historical reasons for the exemption but that L&I is dedicated to implementing the new law and making sure that education and outreach about the new law can be disseminated. 

 

L&I investigates all complaints from workers, Rodriguez said. Complaints can be filed in any language. The employment standards program is doing a lot of education and outreach through webinars and other means in order to get the information about the new law across to anyone involved in agriculture.

 

The new law does not allow for any exemptions for agricultural employers to pay overtime, Rodriguez said, and employees cannot opt out of receiving overtime pay under existing laws. 

 

Burnett said that he pays above minimum wage and tries to do the right things for his workers. He acknowledges that while he would struggle to pay overtime that at the same time picking fruit in an orchard is hard work.

 

“Picking fruit is very hard. It’s hard work. And if I had to do it myself I would go hungry,” Burnett said. 

 

He said that the new law would be difficult in the long run for small growers. Burnett also has difficulty finding workers, which isn’t a problem he used to encounter. For the last three years, he has had difficulties finding pickers. This has caused some losses in selling fruit that he hasn’t been able to pick. 

 

All of Burnett’s property and equipment is paid for, but he is still worried about finances. He is not sure at what point he would give up farming but it could be ”when the money’s gone.” His son might take over the family farm, but Burnett isn’t sure if that would work out financially. 

 

Burnett isn’t sure what the solution could be to help farmers while also ensuring workers can receive overtime pay. He doesn’t like the idea of the government setting prices. He said that money from coronavirus relief programs was helpful to farmers, but that isn’t a long-term solution. 

 

“The bottom line is the overtime is probably as deserved as anything, but I don't know how I'm gonna pay for it,” he said.

 

Burnett explained that it is easier for larger growers that own both the orchards and warehouses to survive increased costs. Smaller growers that don't own the warehouses have to accept the price that the warehouse gives them for their fruit.

 

If costs get too high to keep running orchards, Burnett may put his property on the market and sell it or turn the orchards into hayfields. He said that hay takes a lot less labor and time to produce and is “selling like crazy.”

 

Burnett said that you have to have five years of money saved to grow fruit because it takes two years to get any money back. Over the course of five years, he said you will get one catastrophic failure and one good year. Even in bad years where orchardists lose the majority of their crops, they still have the normal expenses to take care of their crops. 

 

While the long-term future for some farmers may be uncertain, in the short term programs are in place to help them get through tough times. On July 21st, U.S. Senator Patty Murray announced assistance that is available from the U.S. Department of Agriculture to help Washington Farmers impacted by the recent extreme heat conditions.

 

The assistance helps eligible orchardists, livestock owners, conservation programs, and farmers. It provides compensation for farmers' losses in counties marked by severe drought. In addition to financial assistance, the program can provide emergency loans to farmers who need it.

 

But short-term relief programs do not solve the supply and demand problems of agriculturists in the long-term. Although workers deserve to be properly compensated, the future for some small farmers may be uncertain.