Is Washington’s farmworker overtime law working as intended?

Washington’s farmworker overtime law took full effect this year, with workers now legally required to receive overtime pay after working 40 hours in a single week. In Oregon, a similar law is being phased in — workers currently receive overtime payment after 55 hours of work. The law was intended to fairly compensate farmworkers for the long hours worked during the growing and harvest seasons, but some workers say it’s actually led to lower earnings as farmers hire more workers to avoid paying overtime.

Johanna Bejarano has been covering the law and the controversy surrounding it for Northwest Public Broadcasting. She joins us with more details.

This transcript was created by a computer and edited by a volunteer.

Dave Miller: From the Gert Boyle Studio at OPB, this is Think Out Loud. I’m Dave Miller. Washington’s farm worker overtime law just took full effect; workers there are now required to receive overtime pay after putting in 40 hours in a single week. A similar law is being phased in in Oregon. Both laws are intended to fairly compensate people for the long hours they put in during growing and harvest seasons. But some workers in Washington now say it’s actually led to lower pay, as farmers hire more workers instead of paying for overtime for their existing ones. Johanna Bejarano has been covering this for Northwest Public Broadcasting. She joins us now with more details. Welcome to the show.

Johanna Bejarano: Thank you so much, Dave. It’s nice to join you today.

Miller: How did Washington’s overtime law come to be?

Bejarano: Well, the efforts to get the overtime law actually started in 2016. It was because some dairy workers in the Yakima Valley filed a class-action lawsuit against DeRuyter Brothers Dairy. It’s a company located in the town of Outlook. At that time, those dairy workers said they were working long hours with no breaks, and they were not receiving overtime pay because of the exclusion of agricultural workers from that protection. And at some point, those parties reached a settlement. It was after the Washington Supreme Court ruled that this exclusion was unconstitutional and those dairy workers were entitled to get that fundamental right to health and safety protections under the state law.

But the court didn’t specify that provision cover only the dairy workers, or all agricultural workers. So after that, in 2021, the state legislature passed a law extending the overtime for agricultural workers. So that’s what happened here.

Miller: What was the general sense among agricultural workers then, when the law passed?

Bejarano: Well, people were happy. They said that it was a win for the agricultural workers, after decades of being excluded from the overtime pay. So, they think they got the right they deserved. But then things started to change after the law was actually being implemented.

Miller: I should note that it has been phased in over the last couple of years. And now, as of the first of this year, it’s fully phased in - meaning, as I mentioned, that overtime kicks in now after 40 hours. And we’re talking because the law hasn’t worked as workers hoped it would. Can you give us a sense for the drop-in hours that we’re talking about for the workers you’ve talked to?

Bejarano: Yeah. Before, agricultural workers say they could work like 60 or 70 hours per week and the harvest season was really good for them. So they were [making] good money. But now, they say the hours have been cut in half. So it’s like they are working 36 hours per week, not necessarily 40 hours per week, so they are getting less paychecks.

And I think one of the things we are seeing here is the difference between the experience of local workers and H-2A workers. For example, I interviewed an H-2A worker who came here in 2017, and he said that at that time, it was worth it to come here to the US with a contract. But now, he is doing 36 hours per week, and the rest of the time he needs to stay at home, because there is no work to do. So, it’s not giving enough money to send to his family in Mexico, and it’s happening to other workers who come from Central America too.

Miller: Has that led to tensions between temporary farmworkers and long-time farmworkers?

Bejarano: Well, not necessarily tensions in terms of fighting among themselves because both sides know that for them, it’s important to work and get money and support their families. But some local workers have this perception that H-2A workers have advantages compared to them.

Miller: I should just remind folks, “H-2A,” that’s temporary agricultural workers. It’s a visa program from the federal government. And some local workers have said that they think the farmworkers with these H-2A visas have special benefits.

Bejarano: Yeah, because they say when you come here with a contract, you have a house, you have transportation, your employer provides you tools, that kind of thing. And domestic workers or local farmworkers say we need to provide our tools, we need to pay rent, we need to pay gas, and we need to pay [for] food. Also, we don’t work the whole year. Some of them work like nine months, not necessarily during the winter season, and they need to save money for those times. So, it’s like they need to incur more expenses than H-2A workers or foreign workers need to do.

Miller: Meanwhile, what did you hear from farm owners about the current situation?

Bejarano: Well, they said that is hard for them because they cannot afford paying overtime. Some say that the money they are receiving is not enough to cover the production cost. So the overtime is putting them in a difficult situation. And they also said that it’s not sustainable for the industry, and at some point, it will lead to the closing of farms here in Washington. So the industry is at risk.

Miller: What did you hear in terms of possible solutions or tweaks or changes to this new law?

Bejarano: Well, there have been efforts to try to pass other laws, like one presented to create an exemption allowing farmers to select 12 weeks a year for not paying overtime after the workers work 50 hours a week.

Miller: Oh, so they could select, say, the time around planting, around harvesting, when they need the longest hours. And they could say these are the times when we don’t have to follow this rule.

Bejarano: Yeah, exactly. But the thing is those efforts were not successful. So that bill proposal was presented last year, again this year and it didn’t go through.

There are other efforts to get or to collect more information about the farmworker situations, especially H-2A workers, like seeing what wages are they receiving, where they are located. And if farmers really need more H-2A workers, because there is not the local workforce to cover the positions they need. That’s a bill that actually is being discussed at this time in the Legislature.

And about other solutions, if you talk with farmworkers who are in favor of the law, they said that data collection is critical to really understand what is happening in the farmworkers workforce in the region. Also, they think that the law should be enforced instead of looking for exceptions. But if you talk with workers that are against the law and the overtime, the solution for them is just not getting overtime, getting more hours of work, because they prefer to have the work and more money to be able to support their families.

Miller: Johanna Bejarano, thanks very much.

Bejarano: Thank you so much for inviting me.

Miller: Johanna Bejarano is a reporter for Northwest Public Broadcasting. She joined us to talk about the challenges in the implementation of Washington’s farmworker overtime law. It’s worth noting again that Oregon is just a little bit behind Washington in implementing its version of a very similar law.

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