Farmworker Overtime Bill Awaits California Governor’s Approval

Pending law would give California farmworkers daily overtime pay after eight hours

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(Editor's Note: Brown signed A.B. 1066 on Sept. 12.)

California lawmakers recently sent a bill to Gov. Jerry Brown's desk that would lift the state's overtime exceptions for farmworkers. 

If enacted, A.B. 1066 "would require employers to pay agricultural workers overtime over a four-year phase-in process," explained Kristina Launey, an attorney with Seyfarth Shaw in Sacramento, Calif.

"It's a rather controversial bill," she said. "The United Farm Workers sponsored the bill, while a coalition of agricultural employers and others oppose it." 

The author of the bill, Assembly Member Lorena Gonzalez (D-San Diego), said it's the right thing to do. "The whole world eats the food provided by California farmworkers, yet we don't guarantee fair overtime pay for the backbreaking manual labor they put in to keep us fed," she said in an Aug. 29 statement.

The coalition of employers, however, argued that the bill would drive up costs for farmers in the state and result in fewer scheduled hours for workers. The employers "also argue that the bill would severely impede their ability to be flexible in scheduling workers," Launey noted.

Overtime Threshold

Historically, both state and federal wage and hour laws have excluded farmworkers from overtime protections, said Douglas Farmer, an attorney with Ogletree Deakins in San Francisco.

Some farmers argue that more flexibility is needed in agriculture than in other industries "due to the seasonality of agricultural production and the effects of uncontrollable weather," Launey mentioned.

California currently has a modified rule for farmworkers, which provides overtime pay for hours worked beyond 10 in a day or 60 in a workweek.

Farmworkers in the state must also receive time-and-a-half for the first eight hours worked on the seventh consecutive day and double time thereafter.

A.B. 1066 would align agricultural employees with other workers in the state by providing time-and-a-half pay for hours worked in excess of eight in a day and 40 in a workweek.

The provisions would be implemented in phases over a four-year period as follows:


Year

Daily overtime begins after:

Weekly overtime begins after:

2019

9.5 hours

55 hours

2020

9 hours

50 hours

2021

8.5 hours

45 hours

2022

8 hours

40 hour

 


Under the pending law, employers would also have to pay double time to employees who work more than 12 hours in a day starting in 2022.

Businesses with fewer than 25 employees will have an additional three years to comply.

"The bill would also delete an exemption for agricultural workers from the entire chapter of the [California] Labor Code relating to working hours," Launey noted, "such that all other provisions in existing law regarding compensation for overtime work would apply to agricultural workers beginning Jan. 1, 2017."

Increased Costs

Employers that oppose the bill "say it will raise costs for farmers and hurt workers," Launey said. They argue that because of those costs "farmers will be forced to limit their current workers' hours and hire additional workers when it becomes busy."

There's already a perceived labor shortage in agriculture because it's difficult to find people willing to do the hard work, Farmer said. This law could put further pressure on the California labor market.

To contain the additional costs, employers may have to get creative through their use of other options under the California Labor Code.

Farmer said employers might want to adopt alternative workweek policies like employers in other industries have been using.

If certain conditions are met, California employers may establish a regularly scheduled alternative workweek that makes it permissible for employees to work more than eight hours in a day without receiving overtime pay.

For example, employees in the state can agree to regularly work four 10-hour days in a workweek without receiving overtime compensation.

Agricultural employers will probably want to adopt this type of alternative workweek arrangement if the bill goes into effect, Farmer said.

The pending law could also create short-term administrative issues for employers.

"If the bill is enacted, agricultural employers will need to scramble to prepare payroll systems and practices, as well as policies and procedures for scheduling employees, for the immediate changes that would go into effect in January 2017," Launey added.

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