Washington state authorities and grower groups are working out practical guidelines for paying piece-rate workers during rest breaks in the wake of last year’s state Supreme Court decision against a berry grower.

Sarah Wixson

Sarah Wixson

With input from grower groups, labor associations and attorneys that represent both employers and workers, the state Department of Labor and Industries has drafted an update to its employment standards manual, answering several questions regarding rest breaks.

“The guidance is not yet final, but if it is adopted, this is going to catch people off guard,” said Sarah Wixson, an attorney with Stokes, Lawrence, Velikanje, Moore & Shore. Wixson and her Yakima, Washington, firm have a history representing grower employers in labor issues.

In July 2015, the state Supreme Court unanimously ruled in favor of piece-rate workers, demanding that Sakuma Brothers Farms in Skagit County pay them separately for their rest breaks at a rate calculated based on their productivity for the week.

In the past, growers had usually just included the wages for state-mandated rest breaks in the overall rate paid for bin filled, box picked or tree pruned. Workers then took a break if and when they wanted one.

To help growers comply with the ruling, the Labor and Industries Department has so far come up with several guidelines and is attempting to draft more.

Here are a few examples:

—Growers wanting to pay by the hour but offer a bonus for certain productivity levels must include the bonus amount when determining the rest-break rate.
—Workers and employers may not agree to a piece-rate contract that would pay rest-breaks rates lower than their productivity.
—Workers shifting between hourly rate and piece-rate chores must receive rest break pay at the rate of what they were doing when they took the break.

Other questions, such as how bonuses to salaried employees — for example, yield bonuses for an irrigation manager — would affect rest break pay, remained unanswered at Good Fruit Grower’s press deadline.

Many of the guidelines will deal with the difference between discretionary and non-discretionary bonuses and how each affects rest break pay.

A discretionary bonus is essentially a gift, given at the discretion of the employer independent of any contract, incentive or promise and therefore does not have to be included in rest break pay.

A nondiscretionary bonus is one granted in exchange for production levels or longevity and must be reflected in the rate paid for rest breaks. For example, if a grower promises a bonus to workers who stay through the end of the season, that grower must retroactively pay extra for all the rest breaks that season adding the bonus into the calculations.

“Most bonuses are an outright promise,” Wixson said. “You don’t get people to stay if you say, ‘Well, stay until the end of the season, and I might just give you a bonus.’”

Wixson suggests growers pay attention to the guidelines and make sure to follow them, even as they are under development.

“Those who see the changes coming are going to be in a much better position than those who are caught totally unaware,” she said. “We’re trying to keep farmers from getting sued.”

The Labor and Industries Department does not plan to make the guidelines part of the Washington Administrative Code, said Alison Drake, management analyst for the fraud prevention and labor standards division of the department.

It’s unclear when the guidelines will be complete. “We know that is definitely an outstanding concern for everyone in this industry,” Drake said. •

Read all the “Unanswered Questions” document at bit.ly/PieceRateQuestions

– by Ross Courtney