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What the fate of Assembly Bill 2757 tells us about both sides of the debate

Commentary

This month, an effort to increase overtime benefits for California’s agricultural workers came close to succeeding in the state legislature. Its backers are trying again. And they have a decent shot at prevailing against a strong farm lobby. If not this time, maybe next time.

Whether they should prevail, though, remains open to debate.

Everybody who touches that fruit and works more than eight hours gets paid overtime except for the person who picked it.

It might sound like a no-brainer: most wage-earners in America are entitled to overtime benefits if they work more than 8 hours in a day or 40 hours in a week. Why should agricultural workers be an exception? Advocates point out the particularly arduous conditions: spending 12 hours hunched over, picking strawberries in the hot Central Valley sun is much more taxing than stocking strawberries in an air-conditioned grocery store. And yet it’s the grocery-stocker who qualifies for overtime benefits. “Everybody who touches that fruit and works more than eight hours gets paid overtime,” says Armando Elenes, national vice president of the United Farm Workers of America. “Except for the person who picked it.”

On June 2, Assembly Bill 2757 was narrowly defeated on a 37-35 vote, falling short of the 41 votes required for a majority. Passage of the bill would have gradually lowered the threshold for receiving overtime pay from 10 hours in a day or 60 in a week, to 8 hours a day or 40 in a week–in line with other industries. The 8/40 threshold was to have been reached by 2022.

The bill‘s sponsor, Assemblywoman Lorena Gonzalez of San Diego, re-introduced the legislation this week.
Opponents of increasing the benefits–that is, growers and their political allies–say they are just as concerned about workers as they are about their own bottom lines. It’s easy to scoff at that assertion, given that some growers said the same thing when the state imposed rules to keep agricultural workers from dying of heat exhaustion and dehydration. But that doesn’t mean that growers are wrong this time. If overtime benefits are increased, at least some agricultural workers would likely end up working fewer hours and making less money. For that reason, some workers have said that they’d prefer to keep the current overtime rules (which are already more generous than those in most other states) in place.

The trouble is, it’s impossible to know what the impacts of the legislation would be, and it’s impossible to know how many agricultural workers favor it.

Elenes goes even further–he believes that not a single farmer will hire a single new worker to avoid paying the extra overtime.


Their main representative, the United Farm Workers of America, has lobbied hard for the increased benefits. “How is it fair that a worker who spends all day working in extreme heat doesn’t merit overtime while people in other industries do?” asks Elenes. He rejects the notion that farmers would simply hire more workers and split shifts to avoid paying overtime. “That would mean they’d have to send their most productive workers home,” he says. That, combined with the costs of hiring and training new workers, means most farmers would just pay the overtime, say the UFW, Gonzalez, and other backers of the measure. Elenes goes even further–he believes that not a single farmer will hire a single new worker to avoid paying the extra overtime. The labor market is “tight” at the moment, he says. “Where are they going to find these workers?”

California is one of the nation's leading producers of salad greens

USDA California is one of the nation’s leading producers of salad greens

Opponents of the measure say that “flexibility” is needed in farming because of the seasonal nature of the business: there is lots of work at harvest time, and not as much during other times of the year.

Legislation similar to Gonzalez’s has been brought to the state legislature several times in recent years. Gov. Arnold Schwarzenegger vetoed one such bill in 2010. The current 10/60 threshold was signed into law by Gov. Jerry Brown in 1976, during his first go-round as governor. Before that, farmers didn’t have to pay overtime at all. In most states, they still don’t, thanks to the exemptions written into the Fair Labor Standards Act in 1938. The “flexibility” needed for farming operations “is what that exemption was created for,” says Linsey Dale, executive director of the Imperial County Farm Bureau, which represents growers in the southeastern corner of the state, along the Mexico border.

Agriculture is still seasonal.

“Nothing has changed since then,” Dale says. “Agriculture is still seasonal. That was certainly one reason President Franklin Roosevelt agreed to the farm exemption. Another was that, to get the law passed, he needed the votes of Southern legislators who represented farm interests that were exploiting mostly black farmworkers.

If Elenes goes too far in insisting that no farmers would hire any extra workers to avoid paying more overtime, Dale may be going too far in the other direction. Many farmers will “bring in two crews” rather than pay the extra freight, says Dale. Others will speed up their plans to automate. “We’ll continue to grow more crops. But with fewer workers.”

Some farmers might also work in league with their neighbors, warns Laura Brown, director of government affairs for California Citrus Mutual, a growers’ trade association. “I could easily see them swapping workers with other growers,” in order to avoid paying overtime, she says. Brown points out that with the statewide minimum wage being boosted to $15 an hour, California growers are “at a competitive disadvantage already with other ag-producing states.” Forcing more overtime rules on them would simply make matters worse. And she agrees with Dale that growers will move toward automation that much faster if their labor costs increase.
Elenes dismisses the automation threat out of hand. “That’s going to happen no matter what,” he says. True, says Larry Cox, who grows onions in Imperial County and is the farm bureau’s president. But increased labor costs would make it happen faster. “If the 40-hour workweek bill passes, we would plan to automate further, or move more production to our Mexico ranch or more to Arizona,” he says. “Other farmers have said they may just reduce their plantings to what they can do in an 8-hour day or exit the vegetable business and just plant crops that require less hand labor.”

Whatever Elenes and the UFW might believe, Cox is right. Some farmers will do some of those things, and most will do everything they can to reduce costs in what is, after all, a low-margin business. The question, as yet unanswered, is what impact those decisions will have on the lives and livelihoods of people on both sides of the debate.

Dan Mitchell

Dan Mitchell is our West Coast editor. A journalist based in Oakland, Calif., he has written for The New York Times, Fortune, Wired, Slate, the Chicago Tribune, Civil Eats, Modern Farmer, and many other publications. Follow him @thefoodeconomy