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Oregon farmworkers say state is illegally excluding them from overtime pay

Agricultural workers are asking the Oregon Court of Appeals to declare state rules excluding agricultural workers from overtime pay illegal.
Credit: AP
(AP Photo/Nathan Howard, File)

SALEM, Ore. — Anita Santiago has been a farmworker for 15 years, working long hours in the fields without the overtime pay most hourly workers in the U.S. enjoy.

There are plenty of days she anticipated having to work for eight hours, only for her supervisor to demand the workers finish the field that day regardless of how long it took.

The long days and lack of overtime pay negatively affect her physical and mental health, increase her childcare costs and impact her children’s wellbeing, Santiago’s lawyers wrote in a petition filed Tuesday with the Oregon Court of Appeals.

Santiago, farmworker Javier Ceja and local non-profit Mano a Mano have petitioned the court to review Oregon’s rules excluding farmworkers from overtime pay and declare them unlawful.

The petitioners argue two of the Bureau of Labor and Industries’ administrative rules “arbitrarily deny overtime to agricultural workers,” claim the agency lacks the legal authority to exclude workers from overtime pay, and contend the agency adopted the rules without consideration for farmworkers’ health and safety.

“I hope that the court agrees with me and stops treating farmworkers as a separate group that does not have a right to overtime pay,” Santiago said in a statement from the Oregon Law Center.

Labor Commissioner Val Hoyle said in an emailed statement Wednesday she has always supported farmworker overtime. She said the bureau was only recently made aware it had more authority in establishing farmworker overtime, and it has since been collaborating with workers and employers to change the rules.

She believes the petition will postpone that work, she said.

“Unfortunately, this lawsuit will halt that work and will delay our ability to get farmworkers their overtime wages. The legal filing makes it so that we are precluded from communication with stakeholders and now all communications must be handled through the Department of Justice,” Hoyle said.

An exemption for agriculture in the federal Fair Labor Standards Act allows farmers to not pay agricultural workers time-and-a-half for hours they work past 40 hours a week. Six states, including California and Washington, have their own overtime laws that require paying some form of overtime to agricultural workers.

PCUN, Oregon’s farmworker union, advocated for farmworker overtime in the last legislative session and plans to push for a similar bill in February’s short session.

According to the legal petition, Oregon law used to list an exception for farmworkers when it came to the Bureau of Labor and Industries' authority to make overtime rules, but 2017’s House Bill 3458 related to overtime in manufacturing removed that exception, and the petitioners argue the agency's current rules rely on that outdated law.

The petition filed by the Oregon Law Center and Legal Aid Services of Oregon also ties the issue of overtime pay for farmworkers to their health and safety and argues the state agency has never evaluated whether overtime pay is necessary to farmworkers’ health and wellbeing.

A group of 10 agricultural organizations, including the Oregon Farm Bureau, Oregon Association of Nurseries and Oregon Wine Council said it planned to engage in the lawsuit, calling the petition an “appalling attempt” to go around the legislative process and arguing the 2017 law did not intend to expand overtime pay to farmworkers.

The groups also said the petition undermines discussions a legislative workgroup of industry associations and worker advocates have recently started.

In Washington, the state Supreme Court ruled in Nov. 2020 that dairy workers are entitled to overtime pay. The court majority said the Legislature had no reasonable basis to exclude farmworkers from overtime protections, saying agricultural work is dangerous and exposes workers to risks from physical strain, pesticides and disease, and the overtime exemption has racist origins.

Gov. Jay Inslee signed a bill crafted from the ruling applying to all Washington farmworkers in May 2021.

Impact to mostly Latino workers

Farmworkers are some of the lowest-paid workers in the U.S.: Their average yearly earnings are between $20,000 and $24,999, according to the National Agricultural Workers Survey.

While the Fair Labor Standards Act is often considered a victory of the New Deal era, guaranteeing protections such as the minimum wage and the standard workweek, the law excluded farmworkers and domestic workers.

Scholars have described the exclusion of these two groups of workers as a “race-neutral” way to preserve racist policies and practices. Most farmworkers in that era were Black, and this exemption brought on board the southern Democrats in Congress needed to pass the New Deal.

Today, 77% of farmworkers are Hispanic, according to the National Agricultural Workers Survey. The petition notes Oregon’s estimated 86,000 farmworkers are mostly Latino and have experienced housing discrimination, harassment by law enforcement and been subjected to violence and discrimination throughout the state.

In Oregon, agriculture makes up 13% of the state’s gross product and results in $5.01 billion in agricultural production, and $2.57 billion in agricultural exports, according to a report from the Oregon state Board of Agriculture.

Parallel legislative efforts

The farmworker overtime bill Oregon Rep. Andrea Salinas, D-Lake Oswego, introduced last session included a last-minute amendment creating a three-year, $100 million transition fund using state general fund revenue to cover 80% of farmers’ overtime costs.

The Oregon Farm Bureau has said paying farmworkers overtime would likely prompt farmers to look toward mechanization and/or reduce workers’ hours to avoid exceeding 40 hours per week. A Farm Bureau survey from earlier this year showed that most respondents said their employees worked between 55 - 70 hours per week during the peak season.

A legislative workgroup is continuing negotiations on the bill, with representatives from PCUN and the Oregon Farm Bureau recently presenting before the Oregon Senate labor and business committee.

Reyna Lopez, executive director of PCUN, said Wednesday the union applauds the lawsuit, although it was not involved in the petition and does not plan to join it. PCUN remains focused on its legislative efforts for farmworker overtime, she said.

“No matter what happens with that lawsuit, we want to push for policy change in the legislative short session,” Lopez said. "It doesn’t change the fact that for 83 years, the agriculture industry has profited from the exclusion of farmworkers from overtime pay."

Dora Totoian covers agricultural workers through Report for America, a program that aims to support local journalism and democracy by reporting on under-covered issues and communities.

You can reach her at dtotoian@statesmanjournal.com