What do real estate agents, salespeople, vessel crews and farmers all have in common? Their work hours are often long and unpredictable, and until recently, Washington law included an overtime exemption recognizing those unique circumstances.
During the recently completed legislative session, only agriculture’s exemption was targeted and removed.
After seeing multiple articles lauding the “historic” passage of the agriculture overtime bill, suggesting a “wrong must be righted,” we believe it’s time to set the record straight on this complex issue.
The state Supreme Court’s ruling last fall in a lawsuit against DeRuyter Bros. Dairy suddenly had all of agriculture facing a series of class-action lawsuits that would have bankrupted our state’s dairy industry, and likely the rest of agriculture. Due to a loophole in Washington law, these farms were being sued even though they never broke the law.
Rather than help, the Democratic majority party in the Legislature demanded that agriculture begin paying overtime in return for protection from these unfair lawsuits.
While Washington agriculture had been exempt from paying overtime, the straight time paid for every hour worked is the highest agricultural wage in the nation at $16.34 per hour (same as Oregon), with average wages for harvest being closer to $17 to $30 an hour. Compare that to a $13.69 minimum wage for other industries — and how many of those industries also provide their workers with housing, work vehicles and even farm-raised food the way many farmers do?
Agriculture is a high-risk industry that is dependent on factors beyond farmers’ control. Farmers have little or no control over the price of the crops they grow. They face unique challenges — bad weather, pest infestations, regulations and competition from other states and nations.
Growing crops can be very volatile. Cherries are a good example. A potentially tremendous crop can be wiped out by one day of rain just before harvest.
The issue of overtime for farmworkers isn’t about taking advantage of minority workers. In 1959, when the overtime exemption for agriculture was put in place, most farmworkers were not minorities. These farmworkers were nomadic, traveling state to state, including Washington, to help with the harvest of certain crops.
Unfortunately, the high cost of farming in Washington is taking its toll. Recent census data show our state is losing an average of two farms per week. Increasing labor costs yet again will doom more Washington farms, and many others will be forced to reduce employee hours to 40 hours a week to stay in business. Does the majority party understand how working extra hours at straight time helped carry our valued farmworkers through the slower winter months? Many farmworkers testified to the devastating impacts of this change in policy, but to no avail. Agriculture petitioned the Legislature to adopt, like in other states, a very reasonable seasonal-hour provision to add back some of these hours during harvest but was unsuccessful.
The original version of the ag overtime bill (SB 5172) tried to protect dairy farmers from the possibility of financial devastation by paying three years of retroactive overtime. The bill was completely altered in committee and was barely acceptable when the Senate first passed it. Although the House improved it enough for us to support it, this bill is not perfect — with seasonality being one of the major outstanding issues. A seasonality provision would allow 12 weeks per year, of the farmers’ choosing, where overtime does not start until 50 hours per week. This provision is necessary to allow farmworkers the opportunity to recoup lost hours from the winter months and help farmers through the extended hours of harvest.
Agriculture, and the legislators who support this important sector of Washington’s economy, were put in a no-win situation. They could either do nothing and let unfair lawsuits bankrupt farms and dairies quickly, or agree to phased-in overtime for the farms, which would have slower but similarly devastating impacts on the industry. The Democratic majorities in the Legislature could have chosen to protect agriculture, but instead their decisions will lead to more farm and dairy closures, loss of farm jobs and fewer hours. The very farmworkers they claim to be protecting will most negatively be impacted by these closures. If this piece of legislation is so beneficial, why aren’t farmers and farmworkers heralding its success instead of newspaper editorial boards?