Late last year and early this year we discussed the new Agriculture Labor laws going into effect in California. Mostly it was centered on the reduction of hours over time from a 10 hour work day to an 8 hour work day.
However, in the language of the bill was a very important phrase that said this bill affects “all Agricultural workers”. This created quite a stir among lawyers and the split was about 50\50. Some took this literally to mean that all workers in the agriculture profession, were now subject to the same rules and there would be no exceptions. Others, pointing to the history going back the the 1930’s that exempted irrigators from the overtime regulations, that this would be cleaned up by the Labor Commissioner who is charged with rewriting the Wage Orders to comply with the legislation.
So far, we have not seen a new Wage order 14 so the one that is on the books is all we have to direct our work for now.
At the beginning of the year, we advised people, based on legal opinions, to continue treating irrigators as exempt employees until we heard from the Labor Commissioner. At that time, we figured we would see something in writing by March and since it was raining, most employers were not working irrigators over 10 hours a day. However, now we are into July with no definitive answer. So, at this point, we are changing our recommendations, and it is our opinion that you SHOULD pay irrigators for overtime if they work over 10 hours in a day or over 60 hours in a week, just as you do other workers.
We base this opinion on the following:
- Previously, if the decision came down that you would have to pay overtime to irrigators going back to January 1, 2017, we were most likely not talking about a lot of hours and the employer can pay it out in one check and would most likely avoid any penalty fines.
- Now that we are in the heat of the year and irrigators are working full time, there is more possibility of them working overtime and the bill to pay back-wages is increasing. At this time, it would be better to pay overtime incurred since July 1 and if we hear later that you must pay overtime from January 1, you can still pay that smaller amount in one check and avoid penalties.
- We don’t want to create a situation where you have many employees who have moved on to other employers and they come back to you and accuse you of not paying overtime. This becomes more of an issue as time goes by.
The decision to pay overtime is still your at this writing, but we feel it is the better position to pay it now and avoid more trouble potentially in the future. Even if the Labor Commissioner ultimately corrects the wording or interpretation and exempts irrigators from overtime, it is a small price to pay for avoiding litigation later.