Farmworkers Finally Won Overtime Pay. Now the Industry Wants to Repeal It.

This story was originally published on Civil Eats.

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In early February, around 2,000 people called in to a hearing on Washington farmworkers’ right to overtime pay. The conversation was tense as farmworkers, advocates, and members of the agriculture industry all weighed in.

The crowd had convened to discuss a Senate bill that would create a “seasonal exemption” to a 2021 law designed to pay farmworkers for overtime. If it passed, farmers wouldn’t have to pay overtime for 12 weeks (of the grower’s choice) per year. Growers saw this as a compromise that would reflect the narrow harvest periods of some crops, like hops and asparagus, while shoring up farm economies. But many farmworker and labor advocates saw this as rolling back the hard-won right to overtime, and perpetuating the inequalities long baked into the laws for farmworkers.

The battle over overtime pay picked up speed in Washington in 2016, when a group of dairy workers there successfully sued the state, claiming that it was discriminatory to deny a largely Latin American workforce protections guaranteed to other workers. This spurred a wider, heated fight that played out in Washington’s Congress, resulting in 2021 in the passage of the strongest overtime law for farmworkers in the nation. After a phase-in period of three years, farmworkers will be granted overtime when they work over 40 hours in any given week, on par with other industries.

The law marked a historic victory for the farmworker labor movement in Washington, including unions like United Farm Workers and Familias Unidas por la Justicia, the Washington State Labor Council, and the dairy workers whose fight for their rights quickly became about more than just themselves. The exclusion of overtime pay for farmworkers is a legacy of slavery that dates back to the 1938 Fair Labor Standards Act, which established bedrock labor protections for most industries, but excluded farmworkers, who were, at the time, largely Black.

“It’s hard to come by a more straightforward example of systemic racism, and we must not press forward with this. It’s time to absolutely eradicate it,” said Andrea Schmitt, an attorney with Columbia Legal Services, who represented the dairy workers in the lawsuit challenging the exemption in the hearing.

Schmitt pointed to the fact that the federal exclusion arose from a deal President Roosevelt struck with Southern Democrats to pass the Fair Labor Standards Act, explicitly designed to exclude Black workers. “They couldn’t exclude Black workers constitutionally. So instead, they excluded domestic workers and farmworkers.” In the dairy worker lawsuit, Washington’s Supreme Court determined that this exclusion violated the state constitution’s guarantee of equal protection under the law, while also citing farm work’s “extremely dangerous conditions.”

Although it now has the strictest overtime law, Washington isn’t alone in turning the tide on this long-standing federal exemption. It followed in the footsteps of California, the first state to end the exemption in 2016, while Colorado, New York, and Oregon have followed suit with similar laws. Minnesota, Maryland, and Hawaii have at least partially ended the exemption. There’s also a push to amend the exemption on a federal level for all farmworkers, supported by President Biden. “It’s long past time that we put all of America’s farmworkers on an equal footing with the rest of our national workforce,” he said, shortly after Washington passed its law.

Yet the road to ending this nearly six-decade exemption is already proving to be fraught, as the agricultural industry continuously pushes back against new laws, claiming the added cost of labor will irrevocably hurt farms. In addition to efforts to pass more exemptions, one Oregon bill would fully repeal the state’s new overtime law. And New York has faced pushback from farmers trying to circumvent the law, including by strictly capping workers’ hours and preventing workers from trading shifts. Regardless of how it shapes up, it’s clear that larger systemic challenges put workers and growers at odds with one another.

The Cost to Farmers

Agricultural industry leaders in Washington, echoing arguments in other states, claim that implementing the overtime law in its current state would economically ruin farmers. This was the unanimous opinion of growers in the recent hearing. A representative from the state’s Asparagus Commission went so far as to warn of the imminent “end of the asparagus industry,” adding that fields of the labor-intensive crop are already being plowed over.

Under the state’s existing law, farmworkers will be paid time and a half after working 40 hours in a single week, beginning in 2024. The law will be implemented in phases: this year, overtime kicks in after 48 hours, where before it was 55 hours. Other states have more gradual timeframes, including California, which began phasing in its overtime law in 2019 and will conclude in 2025, at a 40-hour threshold.

Jon DeVaney of the Washington State Tree Fruit Association spoke to the challenges growers are facing. “Tree fruit growers do not set their prices, but must try and produce fruit at a cost at or below the prevailing market price,” he said in an email. “Labor accounts for 60 percent or more of the production cost of these crops, and in almost all cases growers simply can’t absorb or pass on a 50 percent increase in these costs when the overtime threshold is reached.” And when prices do go up, U.S. growers find themselves competing with fruit from other countries.

DeVaney added that the industry is already grappling with large rises in labor costs and pointed to the minimum wage (AEWR) for the temporary agricultural worker visa program (H-2A) as an example. “This increased 30 percent in Washington between 2017 and 2021 even as compensation inflation across the rest of the economy was only averaging 1 percent.” He added that farms facing financial crises are often selling to larger operations and investors.

Indeed, farmers are facing compounding economic stressors, including increasingly erratic weather patterns and disasters fueled by the climate crisis, rising costs of fertilizer and gas, an endless cycle of costly farm equipment, and the rising costs of farmland increasingly sought out by outside investors. There’s also a longstanding trend of higher wages for farmworkers, predating the overtime law. All of these factors are likely affecting Washington growers’ economic anxiety.

“The state of Washington has been losing pretty consistently,” said Mark Brenner, a labor economist at University of Oregon’s Labor Education & Research Center, which provides policymakers and labor advocates with applied research. “Just talking about farms that are doing crop production, there has been a pretty consistent decline over the last five years,” he said. “They’ve gone out of business, or shifted into other work, or consolidated.”

There isn’t much data available on how the overtime law, teased out from other factors, has affected farmers’ bottom line. Brenner does not think it is plausible that the overtime law would drastically tip the balance sheets for farmers, given that labor costs typically fall short of fertilizer and feed costs in a farm’s operating budget, citing USDA data. He points to a University of Massachusetts Amherst study, which found that expanding overtime protections to the state’s farmworkers would result in a modest increase in production costs by less than 2 percent of the average farm’s overall revenue. These figures, however, would be generally higher for specialty crops, which are more labor intensive.

In the end, the actual result is yet to be seen, as there hasn’t yet been data collected on how the initial shifts to the overtime law has affected farmworkers’ financially.

The Benefits to Workers

The last few years have been a largely unprecedented period for farmworkers, who have worked through a series of disasters — a pandemic, wildfires, heat waves, and more — while rising inflation has driven up the cost of living. In a phone interview, Alfredo Juarez, an organizer and berry worker in Washington, described the law as a necessary relief from the cost of housing, gas, and even the food he picks, while creating a better work-life balance. During the first season of Washington’s law, he’s heard from farmworkers who have earned more during some periods, allowing them to spend more time with their family.

“Parents don’t have to work as much to make money so they could cover all the expenses and spend some time with their kids,” said Juarez, who is a member of Familias Unidas por la Justicia. He grew up in a farmworker family and recalls it being hard to rarely see his parents as they rose early and returned late.

This was echoed by a farmworker who was working at the time of the hearing, and whose testimony was shared by an advocate from UFW. “I’ve missed so many irreplaceable moments with my children because I spent so much time working,” she wrote. “Growers should not be able to just use up our lives. We are not tools or cattle.”

While Washington is still in the early phases of implementation, California can offer insights into how overtime laws potentially shape the lives of farmworkers. The overtime law has been in effect in California since 2019. Susana Ortiz, a farmworker within the Central Valley for 17 years, says the overtime just began benefiting her financially last year, as the law’s threshold moved to 40 hours.

Last year, Ortiz recalled how, during the rainy season, many farmworkers were called in to pick grapes for extra hours on Saturdays, resulting in about a $200 weekly boost in earnings for her husband. Not all farmworkers always opt for overtime though. During this time, Ortiz took time off to organize with United Farm Workers, joining a historic march to Sacramento for expanded labor protections.

Yet farmworkers at the hearing were divided about whether adding the 12-week-a-year exemption would create a sizable loophole in the law. Some spoke to how the law could inadvertently result in them making less money as growers cap their hours. Multiple growers echoed this point, including Mark Hambelton, chair of the Washington Tree Fruit Association. “My only option is to avoid incurring [more costs], meaning unfortunately, cutting my employees back to 40 hours a week or hiring more employees,” he said.

After the hearing, legislators decided not to advance the bill. However, farmworker advocates don’t see it as the end of the ag industry’s efforts to push back. Very similar bills sit in Oregon’s state House and Senate, though it’s not clear whether they will advance during this legislative session.

“It’s very frustrating that we have to keep revisiting these old fights instead of moving forward,” said Edgar Franks, the political director of the union Familias Unidas por la Justicia, which represents Indigenous Mexican farmworkers in Washington state. “We’re going up against a huge agricultural industry that has lobbyists, access to politicians, [and] workers have none of that luxury.”

The Larger Questions at Hand

Erik Nicholson, a longtime farmworker advocate formerly with United Farm Workers and the union PCUN, thinks the conversation around overtime has become narrowly siloed, when it could be a moment to ask more fundamental questions about the food system, and how farm economies can generate revenue into the future.

“We need to stop expecting farmworkers to subsidize the cost of cheap food, because that’s really what’s at play here,” said Nicholson. “The growers are saying they’re getting squeezed. If that’s the case, why are we trying to work farmworkers harder for less pay rather than focusing on the real issue: Growers are not getting enough money to pay what they should be paying?”

While growers have argued that they don’t set their prices, Nicholson sees this as not entirely outside of their control as growers could demand a higher price from food companies. He refers to the strategy of the Farm Labor Organizing Committee to pressure major corporations, such as Campbell’s Soup and Reynolds Tobacco, that contract with growers, effectively raising standards across the food chain.

In other words, the ongoing fights over overtime laws raises the question: What would a farm system that takes into account the experience of the lowest paid workers truly look like? As more states move to consider overtime for farmworkers, that’s the question lawmakers will be tasked with trying to answer.

• Farmworkers Finally Won Overtime Pay. Now the Industry Wants to Repeal It. [Civil Eats]