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Will Oregon’s Farm Workers Get Overtime Soon?: A (Brief) Review of Developments for the Ag Exemption

By David M. Briggs, Attorney in the Employment Law and Litigation Practice Group

Is the overtime exemption for farm workers in jeopardy on the West Coast? The California Legislature was the first to pass a law that will abolish the agricultural exemption by 2025. Now, Washington’s overtime exemption is being challenged.

Before we go deeper, it is important to note that when it comes to wage and hour laws, employers must follow both federal and state laws – whichever is more beneficial for the employee. Historically, Oregon, Washington, and California, all followed federal law, which contains the agriculture exemption to overtime. California will end that practice shortly. Will Oregon or Washington be next?

While Washington’s legislature could get rid of the exemption as well, the most recent challenge to the overtime rule comes from a legal challenge, with the Washington Supreme Court agreeing to hear arguments on the issue. Essentially, Washington farm workers are alleging that the agricultural exemption is illegal because when the federal law was passed in 1939, the implicit intent in denying overtime to farm workers was to discriminate against Black farm workers. The farm workers argue that Washington later adopted that racist rationale in adopting the agricultural exemption in 1959. So, the argument goes, despite the fact that Washington had fairly few minority farm workers at the time (probably around 20% of all farm workers at the time), the adoption of that law was based on discriminatory ideology and should be struck down as illegal.

The Washington farm workers also argue that the courts must grant them overtime, as the Washington Constitution requires that workers in positions that are “dangerous to life and deleterious to their health” be protected. They argue that they must receive overtime in order to protect them from the dangers of being overworked.

The Washington Supreme Court has not scheduled a hearing on this case yet, so it’s still unclear when we will see this case resolved.

We could delve into the legal minutiae of the case. Instead, we’ll sum up and say that the lawsuit feels like a legal Hail Mary. However, raising these arguments judicially may be the first step in a multi-pronged effort to eliminate the exemption. Expect more to come from farm worker advocates as legislative advocacy will likely increase to have Washington follow California’s example here.

Of course, if Washington’s legislature takes on the issues of overtime for farm workers, we should expect advocates for Oregon’s farm workers to quickly follow suit.

Oregon farms should also be aware of these issues in light of persistent labor shortages that exist. Once California eliminates the overtime exemption, it may be even more difficult to convince seasonal workers to give up that benefit in order to come further north. Farms currently have time to plan and prepare for further worker shortages. But, long-term strategic planning should be done now on how some of these changes may impact each farm’s operation.

 

 

David M. Briggs is a partner in the Employment Law and Litigation practice group and a member of the Dental and Health Industry Groups. The information in this article is not intended to provide legal advice. For professional consultation, please contact David at Saalfeld Griggs PC.  503.399.1070.  dbriggs@sglaw.com  © 2020 Saalfeld Griggs PC