California Love: Farm Workers Engaging in “Back-Breaking Work” Get Long Over-due changes to Overtime Laws

By: Alex Reinauer

California Governor Jerry Brown signed legislation into law that would gradually bring overtime rules for farmers more in line with those of other industries.[1] Assembly Bill 1066 was passed by California lawmakers on September 12, 2016, and is expected to expand overtime pay for more than 825,000 agricultural workers.[2] Those workers, the Bill declares, “engage in back-breaking work every day.”[3]

Currently, a farmworker in California is required to work at least ten hours per day, or sixty hours per week, before qualifying for overtime pay.[4] The legislation provides a plan to phase-in the decrease in hours required to qualify for overtime pay.[5] Starting January 1, 2019, the hours per day required to qualify for overtime will decrease by one-half hour annually until reaching eight hours per day on January 1, 2022.[6] Within the same time frame, the hours per week required to qualify for overtime will decrease by five hours annually until reaching forty hours per week in 2022.[7] The plan to slowly phase-in the changes may have been included to deter any adverse effects incurred by agricultural employers.

Standards for overtime pay were first established in the Fair Labor Standards Act of 1938 (hereinafter “FLSA”),[8] but workers employed in agriculture were excluded from the federal act.[9] Congress considered amending the exclusion in 1966, but “[t]he continued exemptions arose from legislators’ fears of market collapse or other adverse reactions to suddenly forcing agricultural employers to comply with all FLSA regulations.”[10] The California Legislature exempted agricultural workers from earning overtime pay in 1941 and did not change their status until 1976, when the current hourly requirements were enacted.[11]

The exclusion of farm workers from earning overtime pay has largely been considered to be discriminatory. The agricultural exemption contained in the FLSA was considered by some to be “a form of discrimination against southern field workers, the majority of whom were black.”[12] Today, ninety percent of California farmworkers are Latino and eighty percent are immigrants.[13]

Opponents of Assembly Bill 1066 assert that the changes may end up harming farm workers, rather than helping them.[14] In order to avoid paying overtime, farmers are likely to hire more workers to work fewer hours.[15] Paul Wenger, president of the California Farm Bureau Federation, said that the measure will negatively affect farmers’ ability to “compete with products out of Mexico where farmworkers there make in a week what farmworkers here make in a day.”[16] Likewise, State Senator, Jim Nielson, claimed that the law would result in “loss in salary for workers and higher prices for consumers.”[17]

Supporters of the bill hope that the law will provide a model for other states that have overtime laws resembling those in California.[18]

[1] Christina Beck, California’s Agricultural Workers’ Overtime Law Victory Hailed as ‘Historic’, The Christian Science Monitor (Sept. 13, 2016), http://www.csmonitor.com/Business/2016/0913/California-s-agricultural-workers-overtime-law-victory-hailed-as-historic.

[2] See Jazmine Ulloa & Sophia Bollag, California Farmworkers Could See Overtime Expanded in the Next Decade after Historic Assembly Vote, L.A. Times (Aug. 29, 2016, 3:37 PM), http://www.latimes.com/politics/essential/la-pol-sac-essential-politics-updates-california-farmworkers-could-see-1472509716-htmlstory.html.

[3] Assemb. B. 1066, 2015-2016 Assemb., Reg. Sess. (Cal. 2016), https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB1066.

[4] See Beck, supra note 1.

[5] Assemb. B. 1066.

[6] Id.

[7] Id.

[8] Jazmine Ulloa & John Myers, In Historic Move, Gov. Jerry Brown Expands Overtime Pay for California Farmworkers, L.A. Times (Sept. 12, 2016, 5:55 PM), http://www.latimes.com/politics/la-pol-sac-farmworkers-overtime-signed-20160912-snap-story.html.

[9] 29 U.S.C § 213(b)(1)-(12).

[10] See Autumn L. Canny, Lost in a Loophole: The Fair Labor Standards Act’s Exemption of Agricultural Workers from Overtime Compensation Protection, 10 Drake J. Agric. L. 355, 366 (2005) (citing Patrick M. Anderson, The Agricultural Employee Exemption from the Fair Labor Standards Act of 1938, 12 Hamline L. Rev. 649, 662 (1989)).

[11] See Ulloa & Myers, supra note 7.

[12] See Canny, supra note 9, at 368.

[13] See Ulloa & Myers, supra note 7.

[14] Alejandro Lazo, California Farmworkers to Get Overtime Pay After 8 Hours Under New Law, Wall St. J. (Sept. 12, 2016, 8:27 PM), http://www.wsj.com/articles/california-farmworkers-to-get-overtime-pay-after-8-hours-under-new-law-1473726418.

[15] Id.

[16] See Ulloa & Myers, supra note 7.

[17] Id.

[18] See Beck, supra note 1.

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