Wednesday, April 7, 2021
By Abigail Ramos, 2L at the City University of New York School of Law.
Little has changed for farmworkers since the original enactment of the Federal Labor Standards Act (“FLSA”) in 1938. Along with domestic workers, Congress carved out farmworkers from the legislation’s bedrock promise of overtime. As a result, people who cultivate, pick, and package our food do not get fairly compensated for their backbreaking work and about 30 percent live below the poverty line.
At the time of passage, Black people comprised the majority of farmworkers. The bill was unlikely to pass without the support of southern Democrats, who required the racially motivated exclusion for their vote on the bill to maintain white farmers’ exploitive labor practices. Presently, there are more than 3 million migrant and seasonal farmworkers in the United States, 68 percent of whom are from Mexico. Even now, their continued exclusion is rooted in the country’s reliance on unethical and racialized labor.
No federal court has moved the needle in reversing the statute’s harm. For this reason, states have played a crucial role in guaranteeing overtime pay. Currently, only six states have some form of overtime protections for farmworkers. In New York, overtime is considered after 60 hours worked whereas in California, phase-in legislation provided for overtime after 45 hours worked starting in 2021. Last November, the Washington state supreme court in Martinez-Cuevas v. DeRuyter Bros. Dairy, 475 P.3d 164 (2020), held that farmworkers were entitled to overtime after 40 hours worked under the state constitution.
The 5-4 decision interpreted Article II, Section 35 of the state’s constitution, which requires the legislature to pass “necessary laws for the protection of” workers in employment “dangerous to life or deleterious to health.” Dairy workers argued that they fell under this classification. The court firmly concluded that dairy workers were protected by the state constitution, citing 24-hour milking for 3,000 cows every day as an example of their grueling work conditions. Additionally, the defendant DeRuyter Brothers Dairy forced workers to stay until all cows were milked. The court relied on statistics regarding the injury rate for dairy workers, which in 2015 was “121 percent higher than all other state industries combined and 19 percent higher than the entire agricultural sector.”
The legal victory was the result a unique collaboration between Familias Unidas Por La Justicia (FUJ), Columbia Legal Services (CLS), and Frank Freed Subit & Thomas LLP. FUJ is an “independent farmworker union of indigenous families” formed in 2013 in the west side of Washington state. The union has been a catalyst in pushing for political and cultural shifts in farmworker issues. It has frequently partnered with CLS since its creation, also winning the right to paid rest breaks for farmworkers and requiring employers to provide reasonable access to bathrooms and toilet facilities for farmworkers.
There are more than 100,000 farmworkers in Washington state who benefit from the decision. “Our union has stepped up to it almost unintentionally, but the opportunities are there for us to do more than just a contract,” Edgar Franks, Political Director of FUJ, told HRAH Blog. “A contract [is] awesome because we helped 500 farmworkers here in Skagit [County]. But these lawsuits have the potential of helping hundreds of thousands.”
The celebratory win for this historic decision was cut short, after state Republicans responded with SB 5172, proposed legislation that would have overturned the decision. Originally, in reaction to the agricultural industry’s cry that it would be unable to pay overtime costs, the bill would have limited the court’s ability to grant overtime pay when it would “create a substantially inequitable result.” It was proposed by two state Senators with close ties to the pro-farmer group Washington Farm Bureau. But after FUJ intervened, the proposal was amended to include the compromise of a three-year phase-in period, similar to California’s, and is pending in the state house.
“We didn’t want the phase-in. We wanted it straight out to get implemented,” Franks responded. “[F]or 60 years, workers were denied these benefits intentionally and that was to the benefit to the industry.”
As Washington joins the small list of states remedying nearly a century of injustice, Franks hopes more people will not only become aware of the challenges farmworkers face in their own communities but will partake in the workers’ movements. He said, “Everybody has a role to play in supporting farmworkers, whether it be just community people or churches or students and lawyers: all of us have a role.”