Clayton, visibly upset, explained that the Central Washington farm’s fruit sales had not been covering costs. And she believes that the full implementation of the state’s agricultural overtime policy would make it even more challenging for farms like her family’s to stay in business.
For the agriculture industry, Clayton’s story illustrates the difficulties farmers may face with the adoption of a 40-hour workweek for every business, a law in effect since Jan. 1. Clayton testified in support of Senate Bill 5476, which would allow growers an exemption of up to 12 weeks in labor-intensive periods during which the overtime threshold would rise from 40 hours a week to 50.
“Agriculture is the second largest industry in the state, and we’re losing them, one-by-one,” Bre Elsey, director of governmental affairs of the Washington Farm Bureau, wrote in an email to legislators last week. The email included a link to Clayton’s testimony.
But in a repeat of the previous legislative session, the bill failed to get out of committee, an indicator that lawmakers, namely Democrats, aren’t interested in modifying a policy deemed a significant victory for farmworkers.
Sen. Karen Keiser, D-Des Moines, chair of the Senate Labor & Commerce Committee, said she felt for Clayton but remained wary of going back on the deal legislators came up with back in 2021 when the agricultural overtime law passed.
“I’m not open to going backward on overtime pay,” she said. “I’m not open to repealing or stepping away from farmworkers having a legal right to overtime pay.”
Path to farmworker overtime
For nearly a century, agricultural workers in Washington were excluded from overtime pay under federal and state wage laws. Labor advocates have regularly noted that the federal wage law, which the state wage law would be based on, was overtly racist, given the predominance of Black farmworkers in the U.S. at the time.
That all changed in 2020 when the Washington Supreme Court favored Yakima Valley dairy workers Jose Martinez-Cuevas and Patricia Aguilar in a lawsuit they filed back in 2016. The court found it unconstitutional for employers to deprive farmworkers of overtime or rest breaks, and the ruling led to the implementation of overtime for dairy workers.
Still, the Court did not address whether all agricultural workers should receive overtime or if dairy workers should receive back wages. Then in 2021, the Legislature passed Senate Bill 5172 to extend overtime to all agricultural workers. The legislation was a compromise among farmworkers, agricultural producers and other stakeholders, as it also preempted any lawsuits filed for back pay, which agricultural producers said would have put them out of business.
Farmworker advocates said the agricultural industry’s recent push for additional changes to the law is frustrating, given that growers received legal immunity.
“The industry is always going to push back and minimize and water down [overtime policy] as much as possible,” said Edgar Franks, political director for Familias Unidas por la Justicia, a union representing farmworkers in Skagit County.
Franks testified against the proposed seasonal exemption bill at last week’s committee hearing. He said that since this is the first year of full implementation of overtime, he felt it was premature to modify the policy.
“We won’t know what the impacts are [for] a couple of seasons,” he said.
Jon DeVaney, president of the Washington State Tree Fruit Association, said there were already issues during this past year when the overtime threshold was still being phased in and was slightly higher, at 48 hours a week.
DeVaney said last year’s cherry season illustrated the additional difficulty an overtime threshold could create for growers. Growing conditions in 2023 meant many cherries needed to be picked within a shorter period than usual. With so many more cherries on the market simultaneously, prices were lower. Growers’ returns were insufficient to cover the cost of harvesting such a large crop, especially with overtime kicking in after 48 hours. That led growers to opt not to harvest part of their crop.
“There was very little confidence if you incur the [overtime expense], you would make it up,” he said.
To keep costs low, growers will likely hire more employees to keep workers below the overtime threshold, DeVaney said. Farmworkers will experience a significant wage loss during peak harvest. Those farmworkers would have to take on a second job from another farm to make up those hours.
At last week’s committee hearings, farmworkers testified both in support and opposition to the proposed seasonal exemption. Several farmworkers expressed concern about losing wages crucial for the winter months, when there is far less work. Others spoke about the importance of maintaining worker protections.
Franks, from Familias Unidas, said that he feels some farmworkers are simply buying into an industry argument and not fully understanding that they are giving away more pay in the long run. Threatening workers with fewer hours creates a negative association with overtime or, ultimately, any effort, such as unionization, to protect them.
“We’ve seen it,” he said. “I think any way they can diminish worker organizing, it’s an all-go for the industry.”
Clayton presented an alternative narrative at the hearing last week. She pointed out that despite not taking on H2-A workers, her farm had provided housing for its longtime workers. She notes that generations of families have worked at her farm, and she worries that housing will disappear if her family has to sell the property.
The agricultural industry maintains that more families will end up in Clayton’s situation and will continue to ask for changes or exceptions to the overtime law.
“Our farmers are struggling, our small family farms,” said Sen. Curtis King, R-Yakima, the sponsor of the seasonal exemption bill. “We got to do something to help them, or we’ll end up with an economy with large agricultural operations.”
DeVaney of the Washington State Tree Fruit Association said he feels what the industry is asking for isn’t unreasonable given what other states are doing. Oregon and New York provide a tax credit during the first few years of overtime wages for agricultural workers.
Some states have a much more extended ramp-up period. New York, for example, implemented overtime in 2020 but will not reach a 40-hour threshold until 2032. California, the only other state with a 40-hour overtime threshold for agricultural workers, has a separate track for small farms. Small employers will not be governed by the 40-hour threshold until 2025, three years after it went into effect for other employers.
In 2024, growers in Colorado who are “highly seasonal” — defined as those who hire twice the number of workers during a 22-week peak harvest season compared to the rest of the year — have a higher overtime threshold, 56 hours a week vs. 48.
“Since the 2024 production season will be the first with a fully implemented 40-hour threshold, we expect these impacts to be even more pronounced this year,” DeVaney said. “We remain focused on discussing these challenges for growers and workers with the Legislature and exploring potential solutions to mitigate these impacts.”
The state does not provide seasonal exemptions for any industry, said Bryan Templeton, employment standards program manager for the Department of Labor & Industries, which enforces Washington wage laws.
However, several industries vary the number of hours and work periods that trigger overtime wages. Those working in hospitals and residential-care establishments have a fixed work week of 14 days rather than seven, and receive overtime for hours above 80 in a week or for all hours worked above eight in a day, whatever is higher, during that period. Firefighters have a 28-day work period and receive overtime if they work more than 240 hours.
Templeton said his agency’s focus is on ensuring employers are following the law. Since agricultural overtime was implemented in January 2022, L&I has received 29 complaints. Of those, three complaints led to a citation and 10 others were able to be resolved before receiving the citation. In those 13 complaints, the agency collected more than $16,000 in overtime pay owed to farmworkers.
Historically, agriculture has been a high-violation but low-complaint industry, Templeton said. So the state agency’s focus is on continued education for both employers and employees, but they also watch for violations that occur but aren’t reported.
Keiser said last week’s hearing was a legislative courtesy to King and to allow those voicing concerns to speak before legislators.
“We never want to shut the door on hearing and listening,” she said.
Keiser said what the agricultural industry has faced and will continue to face is tied to the market, and she’s had informal conversations about providing relief to small growers.
Keiser said there is a legitimate concern about the economic viability of the state’s agricultural industry, particularly small family farms.
“We need to address that,” she said. “But we’re not going to do it on the back of farmworkers.”