Loss of pay and loss of farm worker jobs just some of the unintended consequences of the damaging 5-4 decision

A slim majority of the Washington State Supreme Court clearly believes they, not the legislature, ought to make the laws. In overturning the Washington law that exempts farmworkers from overtime pay, five justices thought they were taking dead aim at Washington’s farmers who hire these workers. Instead, the people they are harming at the workers themselves.

In a 5-4 decision announced on November 5 the Court requires farmers to begin paying overtime immediately. However, they also left the door open for retroactive overtime pay. The four dissenting justices argued against retroactive pay with Justice Johnson commenting that with this ruling now farmers will be sued for following the law.

The case involved dairy farm workers and in addition to the confusion around retroactive pay, it is also uncertain if the ruling applies to all farm workers. The majority opinion stated:

“Further, other industries employing seasonal workers, such as retail, are not exempt from the overtime protections.”

Because the ruling is confusing and inconsistent, it opens the door to a flood of lawsuits against farmers. Farmers now will have to bear the cost of justices leaving major questions wide open while welcoming the flood of litigation certain to follow.

Retroactive pay and lawsuits will destroy jobs and farms

Retroactive pay would most certainly destroy farms. That fact threatens the future of 160,000 direct farmworker jobs and perhaps 800,00 more indirect Washington employees. What is certain is that the confusing ruling will result in a flood of new lawsuits against farmers, stealing productivity from the important job of producing food and causing the loss of more jobs and farms.

Justices Steven Gonzalez, Sheryl Gordon McCloud, Mary Yu and Charles Wiggins joined in the majority opinion. Running roughshod over the deliberative legislative process is one thing. They clearly have no concern about the devastating impact on farms. But, if they thought they were protecting farmworkers, they were very much mistaken. As farmers need farmworkers, the farmworkers very much want and need these jobs and the substantial pay they earn which is essential to support their families

Our Washington farm workers are paid more than farm workers than in any other state. That’s because of our comparatively high minimum wage and the fact that our farms hire many guest workers which in 2020 were paid a $15.83 per hour minimum wage. Most make more than that with incentive pay. Any American worker working with guest workers must be paid what guest workers are paid.

This pay is 20 times the Mexican minimum wage. Imagine having to pay $200 per hour while your competitor pays just $10 per hour. That’s why our farms are losing out to foreign farms at an accelerating pace and most of our fresh fruits and vegetables are now grown on foreign farms.

Why farmers can’t just pay more

The justices and those who support them seem to think that, no problem, the farmers will just have to pay more. Given the competition that is not an option for most. Most farmers don’t set their own prices but have to take what the market will give them. It’s not even a matter of passing the costs to the consumers because foreign competitors have no such rules. Farm costs keep rising much faster than food prices which is why we are losing our farms at an accelerating rate. In urban fringe areas like Western Washington, the lost farmland is converted to suburbia. In other areas, smaller farmers sell to larger more efficient farmers. Losing a multi-generation family farm is not just an economic tragedy, it is a deep personal and family tragedy evidenced by the epidemic of farmer suicides.

Farming is not an 8-to-5 job

Farmers and their employees have always understood that it is necessary to “make hay while the sun shines.” Farm work must be done and cows and crops don’t honor eight hour shifts. So, to avoid paying overtime, farmers will send their workers home after eight hours. This will be very difficult given the already severe shortage of labor, but paying overtime will simply not be an option for almost all farmers. The workers now used to working longer hours during some peak demand times, will not earn that extra pay–unless they work two jobs.

Farmers who have immediately implemented the ruling report their workers dismayed and angry at this disruption in their lives and livelihoods.

Working two jobs for different farmers is a likely option for many workers told they have to quit after eight hours. A worker may choose to work for one farmer for eight hours and then work for a neighboring farmer to fill in his or her available time. In that way, the farm labor shortage may be addressed and farmworker pay maintained. If this happens, farm workers will certainly look back at the days when they could stay working for just one farmer with nostalgia.

The judges seemed to think farm workers needed additional protections. Current laws we have are highly protective of the health and safety of workers––more so than any other category of worker. These measures factored into the legislative deliberation that the justices overruled.

Rest breaks are one example. What employers require workers to take breaks at very rigid and specific times? What employers are subjected to massive fines if they don’t require rest breaks down to the minute? Only farmers. One farm was fined by the state $149,000 for a few late rest or meal breaks. The court later cut the fine in half, but what other business would face such penalties?

More litigation, fewer jobs, larger and more mechanized farms

One farm organization pointed out the devastating impact of the Court’s farmworker job killing ruling:

“The ruling paves the way for hundreds of millions of dollars of back wage claims and more litigation unless the Legislature acts. It is a poignant reminder of the harm done when courts see themselves as a super-legislature.

It is hard to overestimate the impact of this ruling on labor-intensive agriculture in Washington. In the short term, it will spur back wage class action lawsuits seeking hundreds of millions of dollars of back wages and legal fees.

In the long term, it will accelerate the offshoring of labor-intensive crops such as blueberries, decrease pay for farm workers as farmers try to cap working hours at 40, and dramatically increase efforts to automate harvest duties in areas such as apple harvest.”

Is this really what Washington voters want? Lost jobs, lost farms, lost food security?

Voters, even the most liberal, want to see Washington farm survive. Local food is important to voters. The pandemic highlighted the critical importance of food security on both a national, state and local basis. Washington voters must remember this unfortunate and extremely harmful action by these five justices when election time comes and support legislative efforts aimed at helping keep farm workers providing for their families and our Washington farms producing great food.