In 2020, the Supreme Court ruled that working more than 40 hours a week on a dairy in Washington state was inherently dangerous and dairy employees were to be paid time-and-a-half for overtimes hours, immediately. The court left a discussion of retroactive backpay for dairy employees open for further litigation at a later date.
In 2021, Senate Bill 5172 closed the door on backpay lawsuits in trade for a phased-in approach to overtime for all other farmworkers in the state. The promise from proponents was that since farmworkers were working an average of 60 hours a week, they would now receive time-and-a-half pay for 20 of those hours. Proponents were unwilling to consider the realities of agricultural economics.
My primary argument against the bill was that it would negatively impact farmworkers by limiting their hours and taking money out of their pockets. Faced with high overtime costs, farmers would limit farmworker hours, leaving them with less pay.
That prediction has now been validated by real-world experience.
A new study commissioned by the Center for Latino Leadership and administered by Washington State University has confirmed what I’ve been saying for the last six years. The study asked 643 farmworkers to share their thoughts about working in our state, overtime, and various other topics related to their working environment. The study found 67.8% of respondents reported seeing their wages and hours decline since the full implementation of the overtime law.
The reason that farmworkers didn’t see their income rise is that farmers are price takers, which means they cannot simply pass along increased labor costs.
At its most basic, price taker versus price maker easiest to explain with an iPhone. When the production cost for an iPhone increases, Apple increases the purchase price. In that way, Apple passes along the cost increase to their costumers, making Apple a “price maker” because almost everyone wants a new iPhone regardless of cost. When the production cost in agriculture goes up – employee wages, fuel, electricity, water, etc. – that cost is paid for by the producer because their income is determined by the open market. Why? Because not everyone wants asparagus, pluots, or Ambrosia apples; maybe buyers want tomatoes, peaches, and oranges instead. The lack of significant demand, makes agricultural producers “price takers,” or “unable to pass their production costs on to their customers.” Additionally, because individual farmers control such a small portion of any agricultural market, they have little to no control over commodity prices.
If overtime law proponents were sincere in their desire to help farmworkers, they would have started by listening to the pleas of the hundreds of farmworkers who have testified in support of bills aimed at changing the law. For years, farmworkers have asked for more flexibility – either a seasonal exemption for employers or an increase in the hours threshold – to give farmworkers more hours at their regular wage and alleviate the burden on agricultural employers.
At one hearing in 2023, Salvador Martinez testified in support of Senate Bill 5476, which would have provided more flexibility for farmworkers and employers. He told the committee, “I’ve been a farmworker for four years. The overtime legislation has had a really negative effect on us, especially with the high cost of living nowadays. Forty hours is just not enough. That’s why I support this bill. And, we, we, I’m here to ask you for your help. We, we want to work. We want those hours. We need those hours. Thank you.” Mr. Martinez’s testimony, like the testimony of many other farmworkers that day, fell on deaf ears in the Senate Labor Committee, which failed to move the bill. It eventually died, as has every bill to improve income for our farmworker community.
Now, the costs are being paid by farmworkers, who are making less money, and farmers, who have to find a way to make up for the lost labor at key times during the harvest year.
I take no joy in being proven right about ESSB 5172. The overtime law has been detrimental to our farmworkers by stealing money from not just their bank accounts but their children, their holidays, and their futures. Moreover, it could have been avoided if only legislators had listened to the warnings of farmworkers and our research six years ago.
