Farm owners and farmworkers are waiting on a Washington Supreme Court decision that could give farm workers the right to overtime pay, which industry attorneys say could ruin small farms.
The question of overtime was part of a class action lawsuit in which workers alleged that DeRuyter Brothers Dairy, of Outlook, Washington, hadn’t paid them for 10-minute rest breaks and 30-minute meal breaks, as required under state law. The plaintiffs’ attorneys also argued that the court should grant workers overtime pay, despite a provision in state law exempting farm workers.
A Yakima Valley Superior Court judge approved a $600,000 settlement with the 281 workers that covered many of the unpaid time arguments, but the decision didn’t tackle the matter of overtime pay.
The question now before the state Supreme Court is whether a 60-year-old law governing the rights of employees improperly excluded farm workers from overtime pay, a decision that could have a far-reaching impact on Washington’s agricultural sector.
Farmworkers were excluded from overtime pay under the state’s 1959 Minimum Wage Act (MWA), a law based on the 1939 Federal Labor Standards Act (FLSA). That means that while many other hourly workers in the state get time-and-a-half for every hour over 40 hours in a week, farm workers and other kinds of seasonal employees do not.
It not only doesn’t make sense to exclude these workers from overtime pay, but they argue that it’s unconstitutional and discriminatory, said Lori Isley, an attorney with Columbia Legal Services.
Isley’s argument before court has two main prongs based on the state constitution. The first says that the state Legislature has a duty to protect the health and safety of workers who do dangerous jobs. The second focuses on the different treatment of farm workers compared to other kinds of employment.
“We also assert that excluding farm workers from overtime protection violates the guarantee for equal protection,” Isley said.
Today, nearly 99 percent of Washington farm workers are Latinx, and Latin Americans are often given no choice but to work countless hours of dangerous, thankless jobs.
That argument is moored in the history behind the 1939 FLSA, which explicitly and implicitly excluded certain kinds of labor from overtime protections that were predominately done by Black men and women in the south.
FLSA dates back to the New Deal, when President Franklin D. Roosevelt was enacting a slew of laws meant to drag the U.S. out of the Great Depression. While Roosevelt originally intended the FLSA to apply equally to all workers, pressure from southern Democrats led to the exclusion of farmworkers and, implicitly, domestic workers — labor predominately done by Black people, according to a 2011 article by Juan E. Perea of Loyola University Chicago.
Racism, spelled out in the words of lawmakers, underpinned that federal law, a provision adopted without question by the Washington state Legislature in 1959.
“To the extent that the Legislature did that without question, that’s a serious problem,” Isley said. “That was a problem in 1959, and it’s a problem today.”
Counsel for the Washington Farm Bureau and Washington State Dairy Federation say that farm labor has been recognized as distinct from other kinds of work and shouldn’t be held to the same standards under the law.
Part of that is the seasonal nature of the work, but a larger component is that dairy farmers face competition from nearby states.
“One of the things about farmers is that they are price takers, not price makers,” said Timothy O’Connell, the attorney representing the Washington State Dairy Federation and Farm Bureau.
Dairy farmers take their cues from something analogous to a dairy stock exchange, said Jay Gordon of the Federation of Dairy Farmers. The market hasn’t been kind of late. 2019 was the first year that farmers were able to start paying down debts accrued over four deficit years, Gordon said.
Ultimately, the state Legislature embraced the decision to exempt farm workers when it passed the MWA in 1959, O’Connell said, and altering that law should be the purview of the Legislature or a vote of the people, not the courts.
As for the equal protection argument, O’Connell noted that the racial makeup of farmworkers in 1959, when the law was passed, was not nearly as homogenous as it is now and was largely done by White people.
“The plaintiffs made a big to-do about the so-called Jim Crow aspect of the enactment of FLSA,” O’Connell said. “That’s vigorously disputed in this case.”
There are reasons to find those numbers suspect, Isley said, but ultimately the court should be looking at the impacts of laws today, not 60 years ago.
“If something has its origins in our racist history, it’s no surprise that it continues to operate in the same way,” Isley said.
No one can say how much of an effect the decision could have on the Washington agricultural industry, but it is likely to be significant.
Agriculture is a big deal in Washington state, accounting for as much as 12 percent of the state’s economy, according to the Washington State Department of Agriculture. It’s the second-largest export category in the state, and Washington is the third-largest food and agricultural exporter in the U.S.
Ashley Archibald is a Staff Reporter covering local government, policy and equity. Have a story idea? She can be can reached at ashleya (at) realchangenews (dot) org. Follow Ashley on Twitter @AshleyA_RC
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