Dairy farms must pay overtime now, but not retroactively

By 2024 more than 40 hours work on any farm would be time-and-a-half

  WHATCOM ­— A compromise bill passed the Washington State Senate on March 9 setting a gradual course toward farmworker overtime pay, but nixing the idea of such pay as a retroactive liability upon all farms.

  Only those workers from a Yakima County dairy who won their case before the state Supreme Court in November 2020 are entitled to back pay, the Senate bill states.

  Overtime pay to dairy employees in general would be effective immediately, which many farms have prepared for in recent months. Whatcom County has about 70 dairy farms.

  However, across all of Washington agriculture, overtime pay would be phased in as mandatory over three years. That stance reverses some 70 years of established American precedent of farmworker exemption from overtime pay, because of the seasonal and cyclical nature of much farm work.

  Overtime is defined as being more than 55 hours in any one work week beginning Jan. 1, 2022, then to more than 48 hours in 2023 and to more than 40 hours in 2024. Overtime pay must be at least time-and-a-half the normal rate.

  ESSB 5172 won a 37-12 vote bipartisan vote on the last day for policy bills to move forward out of their original chamber. It had been in delicate negotiation in the preceding days, observers said.

  Five of the eight Republican senators who had introduced a much more ag-protective bill in January now voted for this version. However, 42nd District Sen. Doug Ericksen, R-Ferndale, was one of the 12 senators voting against.

  By Friday, March 12, the Senate bill was in the state House Labor & Workplace Standards Committee for consideration.

  Also in the House and in the same committee is a related bill authored by Rep. Sharon Shewmake, D-Bellingham. HB 1516 calls for creating a work group on agricultural labor to look at policies on wages and working conditions and “state protections for collective bargaining.” The panel would have to consider health and safety risks as well as the seasonal nature of work in specific aspects of agriculture.

  Four members would be on the panel to represent farm employers, four for farm workers, and both the state departments of agriculture and labor would have a designate. A first meeting would be by Sept. 1.

  Shewmake’s bill also stops any court from awarding overtime pay retroactively within the dairy industry.

  On the Senate bill, Sen. Kevin Van De Wege, D-Sequim — who grew up in Whatcom County and graduated from Meridian High School —  put forward a key amendment that was adopted. It eliminated the possibility of the Martinez-Cuevas  v.  DeRuyter  Bros.  Dairy case being applied broadly to allow agricultural employees overtime pay retroactively.

  That prospect had triggered high anxiety in farming communities across the state, as a scenario for putting many farms out of business.

  The Washington State  Dairy Federation estimates that dairy farmers alone in Washington would pay between $90 million and $120 million if they had to pay overtime three years retroactively.

  Van De Wege’s input also removed  provisions  in Bill 5172 that created  an  agricultural  overtime transition account with the state for farms to pay into on a contingency basis.

  Sen. Karen Keiser, D-DesMoines, was the sponsor of the phased-in overtime pay idea.