As Washington growers look back at the harvest of a large 2023 apple crop and ahead to an overtime pay requirement in agriculture for all hours over 40 per week, beginning Jan. 1, 2024, many growers and farmworkers are asking how they will manage in this new environment — and whether anything can be done to mitigate the consequences of this change.
State law passed in 1959 exempted agriculture, along with several other categories of workers, from the requirement to pay time-and-a-half overtime after 40 hours per week. This matched the federal overtime exemption for agriculture that has existed since 1938. However, the Washington Supreme Court issued an opinion (Martinez-Cuevas v. DeRuyter Brothers Dairy) in November 2020 that overturned this exemption for dairy workers. The court found that the Washington State Legislature had not adequately justified this exemption in the statute and therefore found it to be an unconstitutional privilege or immunity.
Although dairy work is typically not seasonal, like other agricultural employment, the Supreme Court indicated that the same logic would likely apply to other crops in future litigation. Moreover, the court left open the possibility of claims for retroactive liability for time-and-a-half overtime and penalties up to three years prior, even for employers following the law as it stood at the time.
It was only a matter of time before other crops faced an immediate requirement to implement time-and-a-half overtime and retroactive liability claims. Under these difficult circumstances, the Washington State Tree Fruit Association and our allied agricultural organizations sought relief from the Legislature. We managed to negotiate legislation that allowed for a phase-in period for all other agricultural employees and no retroactive liability for dairy or any other agricultural employers who had been following the law in good faith. This was a remarkably successful outcome considering the starting point for negotiations began after the legal battle had been lost.
This deal initially included a higher threshold of 50 hours for the overtime pay increase during a limited 12-week period of peak farm activity each year, but this was stripped out of the bill in the final hours of the 2021 session. With retroactive liability claims being filed daily and the possibility of a far worse outcome without legislative relief, we supported moving ahead with passage of the bill, with the assurance that discussions of seasonal needs would continue.
Today, this remains a priority. We are concerned that the seasonal and highly variable nature of agricultural work, which prompted the original exemption, was not accounted for going forward.
Agricultural producers operate on extremely narrow margins, and Washington producers already pay much higher wages than their direct competitors in other states and countries that grow the same products. Only a handful of other states have applied overtime to agriculture. Most either have higher year-round thresholds or limited seasonal flexibility. Colorado recently passed a combination of the two, and by 2025 will phase in a 48-hour limit with a “highly seasonal employer” provision that allows up to 22 weeks where a higher 56-hour threshold applies. In Oregon and New York — two other apple-producing states — the recent phase-in of overtime pay requirements has been enacted alongside tax credits to offset these costs. California is the only other state phasing in a 40-hour threshold for all agricultural workers without providing seasonal flexibility or financial assistance.
Without the ability to pass on increased costs to their customers, and in competition with growers who either do not have the same requirements or have assistance in paying for them, Washington growers have had few options other than limiting work hours to the state’s overtime threshold. At 55 hours in 2022, when the Washington apple crop was unusually small, worker impacts were not as apparent. But at 48 hours in 2023, and with much larger crops, workers have been much more aware of the limitations this change has placed on their income and are fearful of the effects in 2024 when the 40-hour requirement takes effect.
WSTFA has emphasized these unintended consequences for the agricultural workforce in our media and social media communications, where we have highlighted employees speaking in their own words about their concerns. If you have not already done so, please make a point of following us on Facebook, Instagram and Twitter/X and then sharing these stories with your own networks.
Public opinion matters, but ultimately it is the policymakers who need to be persuaded to act. Fortunately, we had a successful hearing on this issue during the legislative session earlier this year. Dozens of farmworkers testified that the new requirement has harmed rather than helped them, and legislators who had been skeptical of addressing seasonal needs were surprised and took note of the arguments coming from this quarter.
This year’s lower threshold and larger crop have already generated even more instances when seasonal agricultural workers lost opportunities to earn income while the work was available. In October there were several events at which hundreds of farmworkers rallied to ask for relief, which generated renewed media interest in this issue.
While the impact on farmworkers is both significant and compelling, the story does not end there. Growers are being pressured into difficult decisions based on these constraints, including increased dependence on temporary foreign workers on H-2A visas or leaving fruit unpicked where the returns can’t offset a 50 percent increase in harvest costs. The recent decrease in bulk donations to food bank programs is unlikely to be a coincidence. Unfortunately, we should expect more of these unintended, if not unforeseen, effects in 2024 under a 40-hour threshold.
We have another opportunity to share these perspectives with legislators at our annual Tree Fruit Day in Olympia on Jan. 23, 2024. Volunteers will attend meetings with legislators, scheduled by WSTFA in small groups led by experienced leaders. The only qualification needed is a willingness to share with your elected representatives your experience and views on industry issues. This is a great opportunity to invite a friend, relative or employee who is frustrated by some of the decisions made by our government and encourage them to get involved and make a difference. You can find more information and the registration form at: wstfa.org/tree-fruit-day, or feel free to contact us with any questions you may have.
—by Jon DeVaney