Some farmers question WA state's plan to pay workers overtime

Implementing the 40-hour work week could cause a financial challenge for tree-fruit growers, where mechanization is minimal.

Worker picking fruit from a tree

An H2A migrant farm worker picks cherries for the Valicoff Fruit Company in Wapato on June 26, 2019. In recent years, due to a domestic labor shortage, Washington has seen a huge increase in the amount of H2A visas issued. (Jen Dev/Crosscut)

Nearly two years ago, the Washington State Legislature passed a law that extended overtime to agricultural workers for the first time. This historic legislation involved compromise from all, including labor advocates and agricultural producers.

But as Washington inches closer to being one of just two states to provide a 40-hour workweek for agricultural workers come 2024, it’s clear making history may come with a cost. 

Labor advocates see ag-worker overtime as an overdue moral victory, while those in the agricultural industry argue it might not lead to the additional pay agricultural workers need. 

Those two arguments took center stage during a state Senate Labor and Commerce Committee hearing on Feb. 9 to make a case for a seasonal exemption. 

Under Senate Bill 5476, agricultural producers could identify, at the start of the year, 12 weeks when the threshold for overtime would increase from 40 to 50 hours a week. This would be a modification of the previously passed legislation, which had been implemented in a three-year phase-in starting in January 2022 and reaching a 40-hour threshold for overtime in 2024.

Growers argued the proposed exemption was necessary to help them transition to overtime when production costs are increasing without a concurrent increase in income on the wholesale market. Agricultural workers also testified in favor of the exemption, expressing concerns about reduced work hours. 

Labor advocates, however, argued against scaling back efforts to end the exclusion of agricultural workers from critical worker protections. Ag workers also spoke against the bill as well. 

While the proposed seasonality legislation appears dead this legislative session, the debate over the impact of such a significant shift in labor policy for agricultural workers will likely linger into the months — even years — to come.

Impact on the labor-heavy tree-fruit industry

The impact of the still-new overtime policy will be outsized in Washington’s fruit industry, including apples and cherries. Not only are those fruits the state’s top-valued products, their harvest is more labor-intensive due to limited mechanization compared to other crops. The tree-fruit industry has yet to figure out how to use machines to harvest fruit in a way that keeps apples and cherries looking their best. 

And the state’s tree-fruit industry is still struggling from a difficult 2022 season, when rising costs and the weather caused a massive drop in apple and cherry crop volume — 20% for apples and 30% for cherries. 

A smaller crop, however, also meant less work. Few workers met last year’s 55-hour threshold for overtime pay to kick in, said Jon DeVaney, president of the Washington State Tree Fruit Association. 

In 2023, the second year of the three-year phase-in period, agricultural employees would be owed overtime for any time above 48 hours a week. 

At average crop volumes, more workers will likely run close to that threshold, which may force growers to decide whether to pay workers overtime during busy weeks or find ways to keep them under the threshold, possibly by hiring additional workers or opting to pick less fruit. 

As the optimal harvest time varies among tree fruits, growers may also opt to pick when fruit is in good-enough — rather than optimal — quality. That approach could spread out work hours, avoid reaching overtime thresholds and lower labor costs overall, DeVaney said. 

The upcoming harvest season, he said, should provide additional data on grower decisions that could result in workers earning less than they have in the past. Some workers may have to take on two jobs to work the desired hours they had with a single grower. 

“We think there will be more unfortunate examples of employers being unable to offer [as many] hours,” he said.

Demonstrators, including Martin Rios, center, a United Farm Workers organizer, pose for a group photo during a rally organized by workers from Seattle's Ostrom Mushroom Farms on November 20, 2022. The workers from Sunnyside, Wash., gathered outside Metropolitan Market in Lower Queen Anne to call attention to their efforts to unionize. (David Ryder for Crosscut)

No less than equal rights 

Labor advocates, however, expressed little sympathy for agricultural producers, noting that previous legislation provided relief. 

Agricultural workers were excluded from overtime in federal and state law, a policy many labor advocates say was overtly racist. 

A 2020 Washington Supreme Court decision in a case involving workers — Jose Martinez-Cuevas and Patricia Aguilar — at DeRuyter Brothers, a dairy in Sunnyside in the Yakima Valley, found it was unconstitutional to deprive workers of overtime and rest breaks. 

The ruling did not address several related issues, including back pay and whether workers involved with the production of other agricultural products would now also be entitled to overtime as dairy workers are. 

The 2021 legislation, considered a compromise among farm workers, agricultural producers and other stakeholders, addressed those issues by extending overtime to all agricultural workers and preempting any lawsuits filed for back pay, which agricultural producers said would have put them out of business

Elizabeth Strater, director of strategic campaigns for United Farm Workers, the union representing farmworkers in the western U.S., said she wouldn’t support any modification to legislation under which agricultural workers would receive less pay than nonagricultural employees. 

“As we move through this process, at no point were we going to accept and support anything that ended with less than equal rights for farm workers,” she said. 

Strater said agricultural workers had been accustomed to working without basic protections nonagricultural employees have taken for granted, and many are typically reticent to speak up for better conditions. 

Strater said there is a moral obligation for farm workers, without exception, to receive overtime pay. 

“Farm workers deserved to be treated as equals, and it would be unconstitutional otherwise,” she said.  

Would consumers pay more?

In the summer of 2022, R. Karina Gallardo and Jeff Luckstead, economic science professors at Washington State University, contacted tree-fruit producers in Yakima and Wenatchee on labor issues. 

During those interviews, growers expressed concerns that overtime was one more thing that would strain already-slim margins, along with rising costs in materials such as fuel and other pay issues, such as continuing increases in the state’s minimum wage. 

“They feel they don’t have too much power to control these margins,” said Gallardo, a professor and extension specialist from WSU’s Puyallup Research and Extension Center. 

One reason for this is that growers cannot directly raise prices, said DeVaney of the Washington State Tree Fruit Association. 

While fruit companies can try to persuade an ever-shrinking number of large food retail companies to raise prices to cover costs, there is no guarantee that they would agree to do so, DeVaney said.

Gallardo said that growers are concerned that rising prices for Washington agricultural commodities such as apples and cherries would make consumers opt for less-expensive fruits or even nonperishable food items. She said there needs to be more research on whether consumers would be willing to absorb additional costs if they knew workers were receiving higher wages, or whether they instead would shift buying habits in response to rising costs. 

Plenty of research, she said, shows that a segment of consumers are willing to pay more either for high quality or for moral reasons, such as environmental stewardship or supporting local farmers, Gallardo said. 

But in general, that attitude does not extend to the general public, who are generally more price sensitive. In addition, even those who say moral issues factor into their purchases may not take those actions. 

“It might not reflect what people do in real life [or] reflect their behavior when they go to the grocery store,” Gallardo said. 

Demonstrators hold a United Farm Workers flag during a rally organized by workers from Seattle's Ostrom Mushroom Farms on November 20, 2022. (David Ryder for Crosscut)

What’s next

Washington will be an outlier when in 2024 it starts offering overtime for agricultural workers for time above 40 hours a week — only California currently does so, with the exception of firms with 25 or fewer employers that have until 2025. More states, including Oregon and New York, have passed similar policies, though it will be some time before they fully kick in.

Oregon’s law went into effect this year, but the state won’t reach a 40-hour threshold until Jan. 1, 2027. Ag workers in New York will have to wait until 2032 for a 40-hour workweek. 

Agricultural officials point out that both states offer options that decrease growers’ financial burden. For example, both New York and Oregon offer a tax break on overtime paid for the next several years. Oregon legislators there have also proposed a seasonal exception similar to the one proposed in Senate Bill 5476. 

DeVaney said he plans to keep talking to legislators and believes there will be a more convincing case to provide some relief to tree-fruit growers and other agricultural producers. 

“We’ll have more data to share with legislatures over the course of the season,” DeVaney said.

For Strater of United Farm Workers, efforts will continue not only to push against attempts by the agricultural industry or legislators to roll back protections, but also to work toward ending exclusion from overtime and other worker protections in more states and, ultimately, across the nation. 

“There is progress being made in Washington State, but it’s in this national backdrop of being excluded from basic rights for almost 100 years,” she said.

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