The following is a commentary published in the Capital Press, written by Pam Lewison of the Washington Policy Center – Agriculture is fighting for survival in Washington state
Some moments lend themselves to hyperbole. That amazing fishing trip from seven years ago; the winning free throw at a high school basketball game; the marriage proposal when time stood still.
Or 2020, when Washington agriculture was fighting for its life after a court ruling forced the dairy sector to begin paying time-and-a-half and left the specter of retroactive pay lingering in the background like an unwanted flu just before vacation.
In our state, we are waging a war about how best to determine what “just” compensation looks like in the wake of the Martinez-Cuevas v. DeRuyter Brothers Dairy court decision of November 2020. The dairy sector has its answer from the courts: dairy producers must pay time-and-a-half for any hours worked after 40. The rest of the agricultural community will have to wait and see what comes of the legislative session to determine how to move forward on the question of what constitutes a “work-week” in agriculture.
The ruling, however, left open the possibility of payment of more wages for past work. To be clear, the plaintiffs in the case were paid in full for their work. Any “back pay” would be applying the current law — time-and-a-half rules — to work done in the past. Specifically, it would be imposing a retroactive punishment against the DeRuyter Brothers Dairy for following the law at the time.
A bill in Olympia, SSB 5172, would make farmers pay again for work done three years ago, with 12% annual interest added on as a punishment. Any funds that could not be distributed to former employees by employers would be placed in an escrow account for six years while the Washington State Department of Labor and Industries attempted to locate the individuals involved in the claims. This is not a fix.
The original language of SSB 5172 — “the legislature intends to limit the retroactive effect of court decisions concerning overtime wage claims by delineating factors that establish inequitable results. When considering whether to award retroactive pay in a cause of action seeking overtime pay … the court is prohibited from making such an award when the award would create a substantially inequitable result” — acted as a protective mechanism for all overtime exempt employers; effectively banning lawsuits seeking retroactive payments. That is a fix. A fix for all overtime exempt employers, not just agricultural employers, because it wouldn’t punish employers for following the law.
As lawsuits pile up — more than 30 at last count — the rest of the agricultural community must entertain the very real possibility of paying time-and-a-half just as the dairy sector is doing now.
The prospect of retroactive pay creates an urgent existential crisis for the dairy sector in Washington state. Conservative estimates for the economic effect on the industry suggest it would cost our dairy producers $2 billion should nothing be done to stop this egregious injustice.
There is no more symbiotic relationship than the one between agricultural employers and their employees. It is based upon both parties working in harmony. Without farmworkers, farms would cease to be the cost-effective, efficient marvels they are in today’s economy. Without farms, farmworkers would cease to find themselves with reliable work at wages well above the state’s minimum wage.
Odd-numbered years are 105-day legislative marathons in Washington state. The long session is the saving grace for agriculture this time around. There is still time to negotiate, still time to make our voices and stories heard.
It is not the natural habit of farmers to discuss their business with the public. That is, in part, what got us into this mess in the first place. But it is absolutely essential that we put our habits aside and fight for our employees and our businesses by telling the truth about what we do.
Farmers and ranchers and their employees are a family, a community, and in this moment, when we need each other the most, we must make our voices heard and tell our individual and collective stories to anyone who will listen.