Agricultural workers in Washington will attain a historic milestone next month when, for the first time in state history, they will earn overtime pay if they work more than 40 hours in a week.
The achievement is the result of 2021 legislation negotiated by labor advocates, agricultural producers and lawmakers that erased language in state law for more than 60 years that prevented farmworkers from receiving overtime pay.
But farmers and growers are hoping lawmakers will relax the rules for up to three months a year to accommodate staffing needs at peak harvest times.
A legislative effort fell short last session. They’re committed to trying again in 2024. And the two sides made their case to a state Senate panel on Thursday.
Jon DeVaney, president of the Washington State Tree Fruit Association and Breanne Elsey, director of governmental affairs for the Washington Farm Bureau, said the law has brought many added costs to the state’s second-largest industry.
“I am not worried just for agriculture,” Elsey said, “but also for the health of the economy in Washington overall.”
One expense is hiring additional migrant employees due to a shortage of interested domestic workers, DeVaney told the Senate Agriculture, Water, Natural Resources & Parks Committee.
This year Washington had 38,664 migrant workers out of roughly 140,000 agricultural employees, he said.
Edgar Franks, political director for Familias Unidas por la Justicia, and Andrea Schmitt of Columbia Legal Services, pushed back, saying farmers can adjust hiring and scheduling to meet their needs. They said there are people who still work 80-hour weeks.
“We thought we had negotiated a good bill. We weren’t looking to destroy the farming industry,” Franks said.
A law in lieu of a lawsuit
Washington exempted agricultural workers from overtime pay in 1959.
Dairy workers filed a lawsuit in 2017 challenging the exemption and won.
In November 2020, the state Supreme Court found their exclusion from overtime protections unconstitutional because it violated a right for Washington workers to health and safety protections.
“Our case was about dairy workers,” Schmitt told the committee. “We knew it would take one more court case to erase the exemption altogether.”
It didn’t take another case. Lawmakers passed a law in the next session ditching the language and phasing in payment of overtime to farmworkers over three years.
In 2022, a person was entitled to overtime for working beyond 55 hours in a week. The threshold dropped to 48 hours this year and will be down to 40 beginning Jan. 1, 2024.
Bills introduced in the Senate and House last session would create a seasonal carve-out in which the threshold for overtime would increase from 40 to 50 hours a week. Under the proposed legislation farmers and growers could operate under the higher threshold for up to 12 weeks a year.
Neither bill received any votes in either chamber.
Sen. Ron Muzzall, R-Oak Harbor, an owner of 3 Sisters Farm on Whidbey Island and committee member, said he hopes the legislation gets more attention this session.
“We need to take a good look at how this is working out,” he said.
On Jan. 1, Washington will join California as the only two states in which farmworkers can earn overtime for working more than 40 hours.
An Oregon law, which took effect Jan. 1, 2023, requires overtime after 55 hours. Employers will be required to pay it after 40 hours starting Jan. 1, 2027.
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