Measure allowing overtime for farmworkers moves forward

SPOKANE, Wash. - Agricultural workers in Washington state would become eligible for overtime pay under a bill moving through the Legislature in Olympia.

Somewhat surprisingly, the bill enjoys bipartisan support and even has the backing of farm employers who say it will bring a level of certainty to their labor costs. Farmworkers have been exempted from overtime pay since 1938, although some states such as California and New York have extended those protections in recent years.

"This bill corrects a historic injustice," said state Sen. Karen Keiser, D-Des Moines. "Most workers in America can take the 40-hour work week for granted, but for decades, agricultural workers have not been eligible for overtime pay."

Senate Bill 5172, sponsored by Sen. Curtis King, R-Yakima, passed Tuesday the Senate on a 37-12 vote and was sent to the House.

That followed a compromise sought by the agriculture industry that added a phase-in period for overtime pay.

Under Keiser’s amendment, Washington would establish a three-year phase-in period of the new requirement. Beginning in January 2022, overtime would be due after 55 hours of work in a week; in January 2023, after 48 hours; and in January 2024, after 40 hours.

"This transitional approach improves the safety of an essential and at-risk workforce, increases the public welfare of low-income individuals by removing a historical barrier to their earning potential, and maintains the food security and economic security provided by a stable agricultural sector," Keiser said.

The Senate bill grew out of a landmark November decision by the state Supreme Court that granted overtime protections for dairy workers.

Jon DeVaney of the Washington State Tree Fruit Association in Yakima said agricultural employers were moved to support the bill because of a fear of losing future litigation on the issue, and the possibility they might then be required to make huge retroactive overtime payments.

"We did not want a sudden (court) decision in the middle of harvest season," DeVaney said.

He acknowledged there was "not a lot of excitement" in support of the bill, but also a lack of opposition.

"The court put this on the table," he said of the dairy decision. "There was no all-out conflict that we sometimes see."

DeVaney noted one lawmaker said he was holding his nose to vote for the bill.

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Edgar Franks, political director of the farm worker union Familias Unidas por la Justicia, called the bill a victory.

"It’s something to build off of," he said, in areas such as seeking retroactive overtime pay for workers.

Franks said the support from farm employers, who have traditionally been hostile to paying overtime, was somewhat surprising.

"This was something fair for all sides," he said.

Elizabeth Strater, a spokeswoman for the United Farm Workers union, agreed.

"This is some of the best cooperation we’ve seen in Washington state in a long time," she said.

In November, the Supreme Court ruled against the owners of DeRuyter Brothers Dairy, Inc. in deciding that dairy workers are immediately due overtime pay after 40 hours "because they worked long hours in conditions dangerous to life and deleterious to their health."

For the approximately 65,000 agricultural workers and 6,000 growers in Washington who are not parties to the DeRuyter lawsuit, the Senate bill would provide certainty by pre-empting lawsuits for back overtime pay, supporters said..

"Uncertainty from the decision regarding overtime standards is compounding the pandemic’s disruptions to the food chain and the safety challenges of operating during a public health crisis," said Keiser. "This bill will enable our agricultural sector to keep feeding the world."

While Washington is well known as the national leader in apple production, some 300 crops are harvested on more than 35,000 farms across the state.

The state ranks in the top 10 nationally in the size of the farm labor force.

The bill has until April 11 to be approved by the House to be eligible to become law this year.