Washington farmworkers ask state Supreme Court for overtime pay

It's strawberry season in northwest Washington's Skagit Valley.

For Ana, a farmworker, that means long days bent nearly doubled over to snap ripe strawberries from low bushes.

"You have to lean over a lot to pick strawberries, so of course everything hurts — your legs, your back — everything," she said in an interview in Spanish.

Ana moved to the U.S. from Mexico nearly 20 years ago. She asked that we not use her last name because she's undocumented.

Coronavirus cases in farm country have focused new attention on essential workers there, as well as the food supply chain. One issue is overtime. In most states, farm owners don't have to pay overtime to their employees. Now, a case before the Washington State Supreme Court could change that.

Ana said she works at least 70 hours a week to support her five kids.

She's paid by the pound or Washington's minimum wage — $13.50 per hour — whichever is more.

"I have a big family, and I spend everything I make on things my children need," she said.

In 1938, federal lawmakers created overtime protections, but they excluded farmworkers. And most states, like Washington, copied that rule when they wrote state labor laws. Now farmworkers are challenging that exclusion in the state's Supreme Court.

"It's an injustice that's been on the books for a very long time," said Lori Isley, the lawyer who argued on behalf of the workers.

Isley said, back in the 1930s, agriculture was one of the few jobs available to black people in the South. And Southern Democrats agreed to vote for worker protections as long as they didn't cover farmworkers.

"If we establish here in Washington state that these exclusions are informed by their racist origins," Isley said, "advocates and farmworkers in other states would be able to bring similar challenges where they are."

The nature of farming

In the past couple of years, lawmakers in California and New York have mandated that farmers pay overtime to their employees. But Washington would be the first state to extend overtime to farmworkers through the courts. Then its approximately 100,000 farmworkers, including undocumented workers, would get overtime.

"To say that these laws were created with these racial undertones is detracting from the issue at hand," said Bre Elsey, with the Washington State Farm Bureau.

Elsey said that when the state passed its labor laws in the late 1950s, the majority of farmworkers here were white.

She said the issue at hand is the nature of farming.

"Agriculture is an inherently unpredictable industry," she said. "You know, it doesn't really fit into this 9 to 5 employment box."

Elsey said farmers are worried that the court could award three years of retroactive overtime pay.

That would leave many of them "kind of looking bankruptcy straight in the eyes right now," she said.

If he had to start paying overtime, fifth-generation hops farmer Brad Carpenter said he'd be hemorrhaging cash until he could renegotiate his contracts with brewers and charge more for his hops.

"It doesn't only put a burden on us," Carpenter said, "but it puts a burden on everyone in the system, all the way through to the market." The costs being passed along would eventually mean beer drinkers could end up paying more at stores and bars as well.

During harvest, the Carpenter family farm employs 300 to 400 people, who work 70 or more hours a week to get hops off the vine at just the right time.

"Once you get behind, you're in trouble," Carpenter said, "and you almost have to just say, 'OK, I missed out on these last 100 acres of whatever variety. I've got to go to the next variety.'"

The importance and difficulty of getting the harvest in on time are things Ana, back in the Skagit Valley, understands well. That's why she wants to be paid more for her work, which, during the pandemic, is deemed essential.

"I hope they can raise farmworkers' wages," she said, "because working in the fields is really hard."

Ana said she wouldn't even mind paying a little more for food herself.

Copyright 2020 KUOW. To see more, visit KUOW.

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