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Legislative proposals may affect wages, hours for employees

Ryan Miltner Published on 10 June 2013

For decades, farmers across all of agriculture have become accustomed to an exemption from paying workers overtime. Generally, employers are obligated to pay their workers wages in excess of the federal minimum wage and to pay one-and-a-half times that minimum wage for all hours worked over 40 per week.

The law which creates these obligations, the federal Fair Labor Standards Act, includes a specific exemption from the obligation to pay overtime to agricultural workers. The exemption, however, does not extend to the obligation to pay at least the federal minimum wage.

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Individual states may enact laws which impose greater requirements on employers. Such laws may establish a minimum wage higher than the federal threshold or may require that overtime be paid to workers who are not covered by the federal requirements.

From time to time, individual state legislatures consider bills that would mandate the payment of overtime to agricultural workers who are not otherwise covered by the federal mandate. In early May, the state legislature of Minnesota took up one such measure.

Already in Minnesota, agricultural workers are entitled to be paid overtime in excess of 48 hours per work week. Up for consideration was a measure which would have applied the standard 40-hour overtime rule to agricultural workers.

The Minnesota House of Representatives voted to maintain the 48-hour work week for agricultural workers. The Minnesota Senate still must take up the legislation.

Comparatively few states mandate overtime for agricultural workers. In addition to Minnesota, California, Colorado, Maryland and Hawaii have some type of requirement for overtime pay to agricultural workers.

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The trend, however, appears to be that a greater number of states are willing to look at the policy considerations of continuing a blanket exemption of agricultural workers from overtime payment.

Clearly, this is a function of shifting realities for production agriculture, and more importantly, certain public attitudes about farming. As the size of farm operations continue to grow and consolidation, both vertical and horizontal, continues to occur, the face of farming will undoubtedly change.

The effects of this evolution are familiar to us all – larger operations, integration, family farms with non-family employment, necessities to capture economies of scale, increased use of leverage, etc. Already, the dairy of 2013 looks different from the dairy of 1993.

The average farm of any type today is largely indistinguishable from the farm of 1938, the year that the Fair Labor Standards Act (FLSA) was enacted.

Those who seek to revisit the relevance and applicability of the overtime exemptions point to these structural changes as part of the basis for limiting or eliminating the overtime exemptions.

(As an aside, the Agricultural Marketing Agreement Act of 1937 predated the FLSA by only one year. If the FLSA needs to be revisited, perhaps the Agricultural Marketing Agreement Act should be also. But that is another article entirely.)

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Looking at the matter of wages, the FLSA does require the payment of minimum wages to agricultural workers. In addition, individual states may have more stringent minimum wage requirements.

Recently, it is not the state legislatures but instead the federal government that is examining a bill that touches on the wages that must be paid to farmworkers.

While still in its very primary stages, the bipartisan bill introduced in the Senate on comprehensive immigration reform includes new programs for guest farmworkers.

Among the various aspects of the farmworker program are requirements and guidelines that dictate the wages that must be paid to persons holding these new farmworker visas.

The purpose of these provisions is twofold. First, the wage requirements in the bill are intended to ensure that ready, willing and able American workers are not displaced by immigrants simply on the basis of aliens’ willingness to accept lower wages than the domestic market will bear.

Second, the wages are also set at a level to allay concerns that the farmworkers are not paid a living wage. As drafted in the Senate’s proposal, the wage requirements are tied specifically to the use of workers under the proposed new agricultural visa program.

It would not apply to existing workers or to the employment of new workers who are not participating in the farmworker visa program.

The Senate proposal for immigration reform still has quite a way to go before it comes up for any vote. Further, the House of Representatives has begun consideration of its own immigration legislation, which is expected to be comprised of a series of smaller reforms rather than a single comprehensive bill.

Whether or not any of these proposals secure passage in their respective chambers is a question that cannot be accurately answered. That all goes to say that we are quite far from having to assess whether these proposals will have any real effect on dairy producers.

Nevertheless, there will certainly be those producers concerned that the mere proposal of such legislation represents an attempted governmental intrusion upon yet another area of their business operations and that such wage requirements are precursors to broader or deeper regulation of the compensation of farmworkers.

In response to such concerns, my statement would be that the new Senate proposal for farmworker visas is largely under the auspices of the Department of Agriculture, rather than the Department of Labor, and appears to have been carefully constructed to allow the programs to be administered in a manner that is responsive to the needs of agriculture by persons who are knowledgeable about agriculture’s broader needs.

But there should be no mistake that the broader climate in which today’s farmer operates is vastly different than that which existed when agricultural employers were afforded differentiated treatment for certain wage and hour requirements.

Whether new proposals come from the state level, from aspects of immigration reform or perhaps from future efforts to amend the FLSA itself, the broader agriculture community needs to be cognizant of how it is perceived in the treatment of its workers and be able to articulate its unique labor demands. PD

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Ryan Miltner
Attorney
The Miltner Law Firm LLC

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