Washington Supreme to hear case on overtime pay for farmworkers

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CAPITAL PRESS – DON JENKINS – The Washington Supreme Court, which has twice struck down agricultural pay practices in recent years, has agreed to decide whether farmworkers must be paid overtime wages.

A hearing has not been set, but lawyers are laying out their arguments. At stake, according to the Washington Farm Bureau and Washington State Dairy Federation, are “tens if not hundreds of millions of dollars a year in new costs.”

Other workers in Washington state receive overtime pay after an 8-hour day or a 40-hour week.

“Washington farms are not some impersonal economic monolith,” the groups state in a brief. “Avoiding inflicting such a cost on a vital portion of Washington’s economy is entirely reasonable.”

At issue is whether exempting agriculture from paying time-and-a-half for overtime hours violates Washington’s state constitution.

The case is the third farm-pay lawsuit argued by Seattle attorney Marc Cote, assisted this time by Columbia Legal Services. In the two previous cases, the Supreme Court ruled that piece-rate workers must be paid separately for rest breaks and for “downtime,” such as attending meetings and traveling between fields.

The overtime case stems from a lawsuit brought in 2016 against DeRuyter Brothers Dairy in Yakima County. The named plaintiffs, Jose Martinez-Cuevas and Patricia Aguilar, worked at the dairy as milkers for a little more than a year, according to court records.

The dairy, which has since been sold, settled most claims, but a Superior Court judge’s ruling on overtime was inconclusive. The Supreme Court agreed to take on the question directly, skipping over the court of appeals.

The Legislature exempted agriculture in 1959 when it passed the state’s minimum wage law, generally guaranteeing workers overtime pay. State lawmakers were following the 1938 federal Fair Labor Standards Act.

Cote and colleagues argue the federal agricultural exemption is rooted in historic racism.

They claim Southern lawmakers wanted to hold down the pay of black farmworkers, and Washington lawmakers failed to examine the exemption’s “explicit racist history.”

That history and “the current racial makeup of the excluded agricultural workforce at nearly 100% people of color are grounds to declare the exclusion unconstitutional,” according to their brief.

The Farm Bureau and dairy federation say the “fixation on the current racial make-up of Washington’s farm worker population has no relevance.” In 1959, whites made up 85% of farmworkers, according to the farm groups.

Rather than racism, the farm groups attribute the exemption to the nature of agriculture. “Farming has always been inherently a seasonal business, and overtime at busy times is a natural consequence.”

The workers’ attorneys also argue that farmworkers are entitled to overtime pay because agriculture is an “extremely dangerous industry.”

According to Washington’s constitution, legislators “shall pass necessary laws for the protection of persons working in mines, factories and other employments dangerous to life and deleterious to health.”

The workers’ attorneys argue overtime pay would discourage overworking farm employees.

The Farm Bureau and dairy federation counter that if all the state safety regulations that apply to farms were bound together they would exceed 300 pages.

It should be up to the Legislature to decide whether to also extend overtime pay to farmworkers, the groups argue.

California lawmakers in 2016 voted to phase out the agricultural exemption for overtime pay between 2019 and 2025.

U.S. Sen. Kamala Harris, D-Calif., has introduced a bill to phase out the federal exemption. Oregon Sens. Ron Wyden and Jeff Merkley are co-sponsors.

Posted by: DON JENKINS Capital Press, June 27, 2019

Picture: Don Jenkins/Capital Press

A flag flies above the Temple of Justice in Olympia, where the Washington Supreme Court will decide whether farmworkers must be paid overtime.