No compliance issues with farmworker overtime law yet, but reporting could be delayed

The state hasn’t received wage complaints about overtime pay from farmworkers this summer, but advocates say many delay reporting for fear of retaliation

By: - July 31, 2023 6:00 am
Cherry harvest in the Columbia River Gorge in Oregon.

Cherry harvest in the Columbia Gorge in Oregon.

HOOD RIVER – Guillermina Salguero and her husband have processed and packed cherries and pears in the Columbia River Gorge each of the last eight summers, taking jobs in both Washington and Oregon and sometimes putting in 70 hours a week.

“Ten hours a day, seven days a week for about two months with no break,” Salguero explained. 

Salguero and her husband were among a few farmers who attended a Latino Conservation Week event at a Hood River church in July. Many were still out picking cherries in nearby fields late into the evening.

Before 2021, the couple did not consistently get overtime pay for the 30 or more hours a week they logged above what most in the U.S. consider an average workweek of 40 hours. 

But when Washington passed a law two years ago mandating farmworkers receive overtime pay for each hour worked above 55 hours, the Salgueros decided to work mostly in Washington, rather than Oregon. This summer, Washington farmworkers get overtime pay for each hour worked above 48 hours and next summer, they’ll receive overtime pay for hours above 40 worked. 

Salguero pulled out a recent pay stub in the church’s sanctuary. She typically makes $15.75 an hour packing cherries in Washington. When her overtime kicks in, she makes $23.61 per hour.

She and her husband would consider more work in Oregon, but they’re waiting to see how the state’s new overtime pay law rolls out in its first summer, and if farm owners comply. 

In 2022, Oregon joined Washington and five other states in passing an overtime pay law for farmworkers, much to the dismay of many Oregon farm owners who feared it would put them out of business. The law passed on party lines under a Democratic majority and took effect in January. It will require farm owners to pay time-and-a-half for hours worked beyond 55 hours this year and next, and that threshold will fall to 40 hours by 2027.

Both Washington’s and Oregon’s laws attempt to rectify a historic omission of farmworkers from key labor laws meant to protect workers. In the 1930s, the National Labor Relations Act and the Fair and Labor Standards Act left out farmworkers, who are predominantly people of color, immigrants and low-income. 

So far, farm owners’ fears haven’t materialized. Nor have concerns about wage theft, when employers don’t pay workers all they money they’re due.

The Oregon Bureau of Labor and Industries, the agency responsible for ensuring companies comply with the law, has not yet received any wage claims specific to agricultural worker overtime pay, public records manager Kelsey Dietrick said.

Groups working most closely with Oregon’s 87,000 farmworkers said because the threshold for overtime pay is so high this summer — 55 hours before time-and-a-half must be paid — there won’t be much overtime pay being doled out. They also said that it’s likely any wage theft occurring won’t be reported until late summer and early fall.

“Many workers don’t make wage claims until the end of the season so they aren’t fired,” Kate Suisman, an attorney with the Northwest Workers’ Justice Project, wrote via email. She said many farmworkers are just now learning that they are entitled to overtime pay after 55 hours.

Farm owners and industry groups say that at 55 hours, the overtime rules don’t affect them as much as they will in the years ahead. The law steadily lowers the threshold for overtime pay, so that by 2025, farm owners will need to pay overtime after 48 hours, and by 2027, they’ll need to pay after 40 hours. 

In Oregon, where the current minimum wage is $14.20 per hour, that means agricultural workers logging overtime should receive at least $21.30 per hour. 

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Rare to report

Juan Monje is a community organizer with the environmental and social justice nonprofit Comunidades, based in Hood River. He said he fears many farm owners will find ways around paying overtime when the threshold reaches 48 and then 40 hours.

“Many farmworkers continue to be paid by the box they fill,” he said, rather than paying by the hour. “Thus, the farm owner avoids paying overtime. Likewise, only some are paid for all the boxes they fill with fruit. Consequently, there is a lot of wage theft that farmworkers are afraid to report publicly.” 

Ira Cuello-Martinez, policy and advocacy director for the farmworker union Pineros y Campesinos Unidos del Noroeste, or PCUN, said most workers he speaks with don’t expect to meet the 55-hour threshold.

He fields more questions about the state’s new paid family leave law, which left farmworkers with less in their paychecks but which will allow them up to 12 weeks of paid leave for family or personal medical needs and up to 14 weeks if they are pregnant, beginning in September. 

“When we see the overtime threshold decreased to 48 hours, then I think that will give us a better indication of some of the impacts that overtime will have on the agricultural industry,” Cuello-Martinez said.

Uncertain futures

Mike Doke, executive director of the industry group Columbia Gorge Fruit Growers, said members of the group are talking with each other to make sure the overtime law is implemented. Most are frustrated that the Legislature’s offer to help ease the costs of paying out overtime came in the form of a tax credit.

“The state has a complex tax credit program that nobody’s really excited about,” he said. “They were hoping the state would open a big pot of money, but not a tax credit.”

Depending on the size of the farm, farm owners can get 60% or more of their overtime pay offset through tax credits this year. This will decline in the years ahead. 

On top of that, Doke said, many farms rely on agricultural workers with H-2A visas, allowing them to hire foreign workers to fill temporary agricultural jobs. These farmworkers qualify for overtime pay, but the state tax credit for employers does not apply to these workers, according to Doke.

Lesley Tamura is a fourth-generation pear farmer in Odell, near Hood River. The pear harvest will kick up in the next few weeks, she said, and that will be her first big experience with the overtime law. 

“We haven’t had to pay a lot of overtime yet, but once we get into the harvest season, that will be the first major test I believe, because it is such a time crunch,” she said. “We work the hours we have to work to get the fruit off the trees in the time we’re given. I think once that drops down to 48 hours, that will be the next big test. And then, you know, once it hits the permanent 40-hour threshold, that’s when you’re going to see that dividing line of people going out of business or not.”

Doke said she’s frustrated that the new tax credits will shrink just as farm owners are forced to pay more in overtime. This year, non-dairy farms will receive 60% to 90% back on overtime pay through the tax credit. By 2028, they’ll get between 15% and 60% depending on the size of the farm. 

“It’s structured backward, in my opinion. It doesn’t provide the transitional cushion that the Democrats at the Legislature said it would,” Doke said. 

Greg Addington, executive director of the nonprofit agricultural industry group Oregon Farm Bureau, said many farmers he talks with are trying to find ways to spread fewer hours over more employees or to automate jobs formerly done by farmworkers.

“My sense is that people are making the adjustment now,” he said. “People are trying to figure out ways that they’re not getting into that overtime situation.”

Other new farmworker protections

Smoke and heat laws that went into effect in 2022 were also geared toward improving working conditions for farmworkers. Sebastian Francisco Perez, a farmworker in Marion County, died on the job from a heat-related illness during the summer 2021 heat dome.

The agency in charge of compliance with the heat and smoke laws, Oregon Occupational Safety and Health Organization, or Oregon OSHA, has not received any complaints this summer related to working in unsafe wildfire smoke conditions. None of the 44 heat complaints the agency has received have come from agricultural workers, according to agency spokesperson Aaron Corvin. 

Heat complaints, like wage complaints, are more likely to be submitted near the end of the harvest season, said Suisman of the Northwest Workers’ Justice Project. 

“There is always fear of being fired for asking for what you deserve,” she said.

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Alex Baumhardt
Alex Baumhardt

Alex Baumhardt is a reporter for Oregon Capital Chronicle. She has been a national radio producer focusing on education for American Public Media since 2017. She has reported from the Arctic to the Antarctic for national and international media, and from Minnesota and Oregon for The Washington Post.

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