Overtime Pay and Other Employment Rights for Agricultural Workers

Kokozian Law Firm understands the plight of agricultural workers in California and understands that few occupations today are as physically demanding as agricultural work. Just as importantly, Kokozian Law Firm knows California law concerning the wage and hour rights and working conditions of agricultural workers. Based in part on the unique nature of agricultural work, much of which is migratory and seasonal in nature, historically California laws protecting agricultural workers have been very different from laws protecting workers in other industries.

Under California law, “Employed in an agricultural occupation,” includes:

1. The preparation, care, and treatment of farm land, pipelines, or ditches, including fertilizing the soil;
2. The planting of agricultural or horticultural commodities;
3. The care of agricultural or horticultural commodities, including cultivation, irrigation, and weed and pest control;
4. The harvesting of agricultural or horticultural commodities, and transporting commodities to a place of first processing or distribution;
5. The assembly and storage of agricultural or horticultural commodities;
6. The raising, feeding, and management of livestock, fur bearing animals, poultry, fish, mollusks, and insects;
7. The harvesting of fish for commercial sale; and
8. The conservation, improvement, or maintenance of such farms and associated tools and equipment.

California is one of the world’s foremost agricultural regions. According to the California Department of Food and Agriculture, and the U.S. Department of Agriculture, over one third of the vegetables and two-thirds of the fruits and nuts grown in the United States of America are grown California. California produces more than 400 agricultural commodities valued at over $50 billion.

Agriculture in California dates back to statehood in 1850. In those early days agriculture consisted mainly of large ranches and farms that grew a variety of grains. By the late 1800s, with advancements in irrigation and the use of pesticides, many farming operations began cultivating fruits, vegetables, and nuts, which gave rise to an increased demand for labor. Growers took advantage of cheap labor as workers from various parts of the world came to California to fill the labor demand.

In 1938, the United States Congress enacted the federal Fair Labor Standards Act of 1938 (FLSA) (29 U.S.C. (United States Code) §201, et seq.) Unfortunately, the FLSA excluded agricultural workers from wage protections and overtime compensation requirements.

The Bracero Program (known officially as the Mexican Farm Labor Program) was initiated in 1942 out of concern that World War II would cause labor shortages to low-paying agricultural jobs. Through a series of diplomatic accords between the United States and Mexican governments, an agreement was reached for the use of Mexican agricultural labor on United States farms, and the influx of legal temporary Mexican workers began. The program outlived its original purpose of preventing wartime labor shortages, lasting over two decades.

On paper, the Bracero Program safeguarded these workers, including protections against discrimination; guaranteed pay of at least the prevailing area wage received by native workers; hygienic, free housing; decent, reasonably-priced meals; and free transportation back to Mexico at the end of the contract. In practice, many employers ignored these rules and workers suffered while growers profited from plentiful, cheap, labor through the use in part of braceros and undocumented laborers who lacked full rights in American society.

To help remedy these injustices, California enacted the landmark latorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act of 1975, which prohibited unfair labor practices among agricultural employers and employees and encouraged and protected the right of agricultural employees to engage in collective bargaining with respect to wages, and terms and conditions of employment. Cal. Labor Code §§ 1140 - 1166.3.

Thereafter, the federal Migrant and Seasonal Agricultural Workers Protection Act of 1983 (MSPA) (29 U.S.C. (United States Code) 1801, et seq.) was enacted to protect migrant and seasonal agricultural workers by establishing employment standards related to wages, housing, transportation, disclosures, and recordkeeping. The Occupational Safety and Health Administration also promulgated rules concerning temporary labor camps for agricultural workers. 29 Code of Federal Regulations §1910.142.

Over time, California has enacted laws providing wage, hour, overtime, and meal and rest break requirements that exceed those mandated under federal law. Unfortunately, California mainly exempted agriculture workers from those generous wage and hour protections. For example, unlike California workers in most industries who receive overtime pay for work in excess of eight hours in a workday and 40 hours in a workweek, agricultural workers were entitled to overtime at the rate of one and one-half times their regular rate of pay only if they worked more than ten hours in a workday or more than six days in a workweek.

Assembly Bill No. 1066, approved by the Governor September 12, 2016, amended Cal. Labor Code § 554 and added §§ 857-864. Known as the Phase-In Overtime for Agricultural Workers Act of 2016, Assembly Bill No. 1066 removed the exemption for agricultural workers regarding hours and meal breaks, and other working conditions including the one day’s rest in seven requirement, which obliges employees to receive one day of rest in seven unless the work is performed to protect life or property from loss or destruction or the nature of the work reasonably requires employees to work seven or more consecutive days. Cal. Labor Code § 554. Assembly Bill No. 1066 also created a schedule to phase in overtime requirements for agricultural workers so that agricultural workers could earn overtime compensation on the same basis as most other California workers.

For agricultural employers with 26 or more employees:

Effective January 1, 2021, an overtime rate must be paid to workers for all hours worked in excess of 8.5 hours in a workday and 45 hours in a workweek.

Effective January 1, 2022, an overtime rate must be paid to workers for all hours worked in excess of 8 hours in a workday and 40 hours in a workweek. Double the regular rate of pay will be required for work in excess of 12 hours in a day.

For agricultural employers with 25 or fewer employees:

Effective January 1, 2022, an overtime rate must be paid to workers for all hours worked in excess of 9.5 hours in a workday and 55 hours in a workweek.

Effective January 1, 2023, an overtime rate must be paid to workers for all hours worked in excess of 9 hours in a workday and 50 hours in a workweek.

Effective January 1, 2024, an overtime rate must be paid to workers for all hours worked in excess of 8.5 hours in a workday and 45 hours in a workweek.

Effective January 1, 2025, an overtime rate must be paid to workers for all hours worked in excess of 8 hours in a workday and 40 hours in a workweek. Double the regular rate of pay will be required for work in excess of 12 hours in a day.

Agricultural workers are also generally entitled to overtime pay for the first eight hours worked on the seventh consecutive day of work, and double-time pay for work performed in excess of eight hours on the seventh consecutive day of work.

California has other laws that protect agricultural workers. Entitlement to shade and the requirement that employers must implement effective emergency response procedures and train workers for risks of heat illness. 8 Cal Code Regs §3395. Access to first-aid kits kept in a sanitary and usable condition. 8 Cal Code Regs §3439. Practices to reduce machinery hazards. 8 Cal Code Regs §3441. Lighting requirements for agricultural operations during hours of darkness. 8 Cal Code Regs §3449. The furnishing of drinking water, toilet, and handwashing facilities. 8 Cal Code Regs §3457. Dissemination of information concerning COVID-19 infection prevention and COVID-19-related employment benefits during the state of emergency. Cal. Labor Code § 6725.

If you are an agricultural worker and you believe you have not been paid proper overtime wages, or you believe your employer otherwise violated your rights under California law, contact the leading lawyers at Kokozian Law Firm, APC. Ask about our free initial consultation.