A bill that would end a nearly six-decade-old exemption on overtime for agricultural workers in Washington state is closer to becoming law.
The State Senate approved Senate Bill 5172 just before the first legislative cutoff Tuesday. Proposed by Sen. Curtis King, a Yakima Republican, it passed on a bipartisan 37-12 vote after several changes.
The bill now goes to the House, where it has to pass by April 11 to be eligible to become law this year.
“I think there’s a recognition that it’s the right thing to do,” Edgar Franks, political and campaign director for Familias Unidas por la Justicia, a farmworkers union in Burlington, said in a phone interview Wednesday. “The industry is always saying that workers are always like family and (they) treat them as such. You also (can’t) exclude them from important benefits like overtime.”
The bill provides a provision that would protect growers from lawsuits seeking retroactive claims. The exception to such protection is DeRuyter Brothers Dairy Inc., which was involved in a dairy workers lawsuit over overtime pay that ended up in the Washington Supreme Court.
In November, the court ruled that the overtime exemption for dairy workers violated the state’s constitution. Dairy producers are now required to pay overtime for any time worked above 40 hours a week. However, the ruling did not answer whether the exemption would be removed for other agricultural workers or whether they should receive upwards of three years of retroactive overtime pay as outlined in state law.
The Senate bill would have other agricultural employers paying overtime for time worked above 55 hours a week in January 2022. That would drop to 48 hours in January 2023 and to 40 hours in January 2024.
“Most growers felt there was a likelihood that a court would extend the overtime requirements beyond dairy,” Jon DeVaney, president of the Washington State Tree Fruit Association, said Wednesday. “Knowing that it will be phased in and not happen overnight because of a lawsuit is preferable.”
King’s original version of the bill focused solely on retroactive pay, which had become an issue with several class-action lawsuits filed against dairy growers following the Washington Supreme Court decision.
In the original bill, a court would be prohibited from ordering retroactive pay in overtime wage claims if it created a “substantially inequitable result.”
But SB 5172 came out of the Senate’s Labor, Commerce & Tribal Affairs Committee with numerous changes, including immediate removal of the overtime exemption for agriculture.
In a phone interview Wednesday, King said the bill that came out of committee had “changed 180 degrees,” but it provided a vehicle for continued negotiations — which continued as the bill went to the Senate floor Tuesday night.
An amendment was approved preempting lawsuits for back pay filed after the Washington Supreme Court decision was issued and phased in overtime for the rest of the agriculture industry.
Industry leaders hoped the bill could be further amended to include a provision for seasonality, but that didn’t happen.
One proposal would increase the hours required for overtime from 40 to 50 hours for 12 weeks to account for peak harvest seasons, King said, noting that other states have similar clauses in their overtime laws.
King said he hopes that the seasonality provision could be addressed as the bill goes through the House. Ultimately, the issue of retroactive pay was addressed, which was the core reason for the bill, King said.
“From my standpoint, I was pleased we were able to reach that level of agreement,” he said.
Scott Dilley, communications director and labor policy expert for the Washington State Dairy Federation, said Wednesday the organization is relieved the retroactive pay issue was addressed in the amended bill.
During a hearing for the bill in January, the Washington State Dairy Federation estimated that growers could pay between $90 million to $120 million if back-pay lawsuits were successful, wiping out small farms.
“It really sets us up for a good balanced proposal moving forward,” he said.
Franks of the Familias Unidas por la Justicia union said the bill’s passage came after years of activism from farmworkers and advocate groups. He noted that other overtime bills had languished in previous years.
“I think it signals a willingness now to at least talk to farmworker groups and unions on how we could make a better agricultural economy for Washington,” he said.
While Franks said he would have liked the workers to be eligible for retroactive pay, ultimately having the exemption removed was the more significant win.
“I think in the long run of things, it will bring some kind of relief to farmworker families, knowing they’re going to be getting overtime,” he said. “Yesterday was a pretty big deal and historic.”
This story was edited to correct the amount of time for a seasonality overtime provision proposed by Senate Republicans.