Farming in 40 hours: Washington’s overtime mandate for agricultural workers began its phase-in process at the start of 2022, and this is the continuation of several stories examining the impacts on the fruit industry.
With a new year come new compliance challenges and looming legal liabilities to heed, according to speakers at the “Navigating the Legal Minefield” session at the Washington State Tree Fruit Association Annual Meeting in December. Lawyers and an H-2A contractor shared updates on Washington labor laws, including overtime, downtime, farm labor contracting and increasing scrutiny from retailers on H-2A recruiting.
Overtime and downtime
The biggest issue for 2022: Overtime is here. And the past two years of pandemic panic for employers means few companies have had time to test how best to adapt their management to overtime mandates, attorney Sarah Wixson said.
This year, ag employers must pay overtime at time and a half for workers who exceed 55 hours a week. In 2024, ag joins every other industry with overtime pay kicking in after 40 hours, said Wixson, an employment attorney with Stokes Lawrence Velikanje Moore & Shore in Yakima. (After a similar, phased-in approach, California now requires overtime pay over 40 hours for agricultural workers this year.)
While some employers may be tempted to circumvent the overtime rules by switching more employees to salary, Wixson explained that under Washington law, there’s both a minimum salary and specific duty requirements for employees to be exempt from overtime.
Under federal law, the salary basis cannot be less than $684 per week, but “this is where Google will get you into trouble,” she said. In Washington, the salary basis for 2022 is $1,014 per week, or about $25 per hour, compared to a minimum wage of $14.49. It’s tied to that minimum wage, so as the minimum wage rises, so too will the salary basis.
In addition to wages, only certain types of work are eligible for exemption from the overtime rules, including executives, managers, knowledge workers, administrative workers and outside sales. This is where it gets tricky, Wixson said. To qualify as a manager in this context, the worker must supervise more than two people and have hiring and firing authority.
“Your mechanics and irrigators may make the salary test, but not the supervisory test,” she said. “You want to be very careful about who has manager authority, who you give hiring and firing authority, because they are walking around with your checkbook in their back pocket.”
To meet the administrative exemption, workers must do nonmanual work and exercise independent judgment, she said, while the professional exemption covers those with advanced knowledge.
“Even though your mechanic is probably way smarter than me, they do not meet the learned professional duties test here,” Wixson said, even if they have gone to college.
When it comes to downtime, employers already have several years of experience paying their piece-rate employees’ downtime separately, including traveling between orchards, meetings and trainings, transporting ladders, storing equipment and donning or doffing personal protective equipment.
“Your commute time to and from work is not work, but if you say, ‘Come to the shop and we’ll take your temperature and then have a safety meeting and then travel to the orchard in Mabton,’ that’s work,” she said. “Waiting around for the weather to clear, that’s work.”
There’s no definition of how much waiting constitutes waiting, she added. If most of the crew is waiting in a company van for one worker to finish up, that’s downtime that needs to be paid. “There’s no threshold of grace on that, but it’s a question of risk,” she said. “Is someone going to sue you for 30 seconds of waiting?”
Labor contract liabilities
The theme of how to avoid being sued continued with Wixson’s colleagues, Lance Pelletier and Maricarmen Perez-Vargas, who presented a talk about the Washington Farm Labor Contractor Act.
Farm labor contractor licensing is intended to protect farmworkers so, going in, they know who they are entering into a contract with, the place of work and wages. Under Washington law, any time a farmer pays a fee to someone to help find or hire workers, that person is considered a farm labor contractor.
It’s a very complicated statute, Pelletier said, and growers should know potential areas of compliance risk — or bears to be very wary of, to use his analogy. For example, paying for the gas for an employee who is picking up some workers could be construed as paying a fee for transporting workers, which falls under the definition of a farm labor contractor, triggering licensing requirements.
“We’re seeing some efforts to weaponize this statute,” using technicalities in the language, Perez-Vargas said. “These requirements seem like they should be pretty straightforward, but we’ve found some bears.”
For example, the law requires every farm labor contractor to carry a current license and exhibit it to everyone they do farm labor contracting business with. There’s a $500 fine for failing to comply: That’s potentially $500 for each person to whom you fail to exhibit your license. But what does exhibit mean? Is posting it on a website sufficient, or do you need to wear it on a lanyard around your neck at all times? It’s unclear how to comply, so that’s a bear.
Similarly, the law requires providing a fixed set of information to each potential worker at the time of recruiting, soliciting or supplying, whichever comes first. But what constitutes recruiting?
“Is a radio ad or a sign at the edge of the street recruitment? If so, how do you provide the FLC-required disclosures?” Pelletier said.
Unfortunately, the courts have not yet determined clear answers on those questions, and “we don’t want any of you to be involved in the case that provides definitions for these questions,” Perez-Vargas said.
To reduce that risk, they recommended using fresh FLC disclosure forms for every contract throughout the season and saving signed copies for your records. If recruiting workers via a website, design the processes so that users must click that they’ve acknowledged your disclosures before proceeding to apply for work, which creates a paper trail.
“This is an area of the law that’s evolving; a lot of these words are being challenged,” Pelletier said. “Our advice to you is to be really conservative and check everything.”
An H-2A outlook
Lastly, Joe Martinez and Norma Encinas from Cierto Global, a certified farm labor contractor that specializes in transparent, third-party verified H-2A recruitment, spoke about what they see as increased scrutiny on the agricultural guestworker program from retailers concerned about good labor practices.
“We know you need a dependable workforce and we’ve demonstrated that responsible recruiting protects H-2A workers, farmers and retailers,” Martinez, the firm’s co-founder, said. “Labor abuses at the point of recruitment can really threaten the resiliency of the U.S. agricultural supply chain.”
He referenced the recent labor abuse case that made headlines in Georgia. In what’s known as “Operation Blooming Onion,” federal prosecutors charged a ring of farm labor contractors for fraudulent use of the H-2A visa program that exploited workers, charging them unlawful fees, holding their identification documents hostage, offering little or no pay and providing crowded, unsanitary working conditions, according to the indictment filed in October.
Cases like that have major retailers such as Walmart and Costco looking at workers’ rights in their supply chain, Martinez said.
“Cierto works directly with powerful companies to ensure clean recruiting plays a major role in protecting their brand’s consumer reputation,” he said. “It’s coming down the road.”
Cierto’s approach leverages relationships with community groups in the locations in Mexico where they recruit workers, Encinas said. Those third-party organizations can offer verification that workers aren’t charged any fees during recruitment and also help Cierto conduct local trainings to ensure they are recruiting responsible workers.
“More folks are depending on this system than ever” on U.S. farms and in Mexican communities, he said. “So how do we professionalize the H-2A workforce?”
—by Kate Prengaman