Groups oppose SB 5720 as ‘legislated wage theft’ for farm workers

OLYMPIA (Feb. 27, 2017) — A unanimous state Supreme Court decision in 2015 ruled that growers in Washington state must pay farm workers for rest breaks separate from their piece-rate wages, that they must do so at the same piece-rate, and that growers who denied that rest-break pay were liable for back wages.

This important legal decision was a victory for an estimated 180,000 low-wage migrant and seasonal farm workers, many of whom struggle to meet their families’ basic needs for housing and food, and rarely receive any health care or retirement benefits. The 2015 court decision ensured that farm workers would receive and be properly paid for rest breaks, just like all other workers.

SB 5720 is an attempt by a handful of large agricultural employers to undermine that decision and avoid that responsibility. It would create something called “production-based safe harbor compensation” that allows growers to pay a lower hourly wage — just slightly above the minimum wage — for rest breaks and a wide range of work time when a piece-rate cannot be earned. It would minimize the required compensations due for unpaid rest breaks under the Lopez-Demetrio decision, and provide an avenue for the growers to avoid responsibility for past unpaid rest breaks.

In other words, SB 5720 provides “safe harbor” for employers, but not for farm workers.

The Washington State Labor Council, AFL-CIO, was one of 27 organizations that signed the following letter opposing SB 5720 to Senate Majority Leader Mark Schoesler and Senate Democratic Leader Sharon Nelson last week:

Dear Senator Schoesler and Senator Nelson,

In its 2015 decision, Lopez-Demetrio v. Sakuma Brothers Farms, the state Supreme Court unanimously ruled that agricultural employers in Washington must pay employees for rest breaks separate and apart from piece-rate wage payments. The court also made clear that growers must pay farm workers the piece-rate wage for their rest breaks, not just the minimum wage, and holds any growers that denied pay for rest breaks liable for that back pay.

In 2016, the Dept. of Labor and Industries (LNI) held a series of implementation meetings with agricultural employers, farm workers, labor and business, and workers’ rights advocates to implement the unanimous Supreme Court ruling. After several months of in person discussion, ample and transparent comment period, policy ES.C.6.2, administrative policy (and procedure) for meal and rest break calculation for agricultural workers, was made final August 2016.

For employers who take full advantage of Senate Bill 5720’s safe harbor provisions, the new law would deny farm workers their right to recover in court the full amount of their unpaid wages, including unpaid or miscalculated rest breaks. Adding insult to injury, SB 5720 would allow employers to avoid responsibility for payment of wages for work performed outside production. The undersigned organizations write to express strong opposition to SB 5720, a bill that amounts to legislated wage theft.

SB 5720 was drafted to provide special immunity to agricultural employers that refuse to pay for all hours worked by their low-wage workers. Agricultural workers, who are often paid by piece-rate, filed lawsuits against their employers to recover unpaid wages for hours they worked outside of their piece rate work. SB 5720 is the employer response.

SB 5720 attempts allow employers to avoid paying their piece rate employees for time worked outside of piece-rate work. While this issue is currently on appeal before the WA Supreme Court, the workers are confident they will receive a similar ruling as achieved in Lopez-Demetrio (the rest-break case). SB 5720 seeks to give employers immunity from such a ruling that would result in piece-rate workers being denied payment for work on required tasks such as:

► Attending mandatory safety meetings;
► Waiting for equipment to be delivered;
► Putting on safety equipment before or after piece-rate work;
► Traveling 30 minutes between orchard blocks during the work day;
► Carrying a ladder 100 yards or more to a company trailer so that it can be transported to the next orchard block.

SB 5720 does nothing to ensure piece-rate workers are paid for rest breaks or work outside production in the future. The bill sets no requirements that piece-rate farm workers be fairly paid going forward. It just creates a way for agricultural employers to trigger a “safe harbor” that protects them from lawsuits for failing to pay for all hours worked, thus incentivizing bad behavior by employers.

Rather than providing clarity, SB 5720 muddies the waters with vague and inaccurate references to “workweek averaging” and a regulation that specifically excludes agricultural labor. To be clear, this language (in Section 1, subsection (1) of the bill) has one purpose: to give employers immunity from suit for refusing to pay for certain work time in which workers are unable to earn a piece rate.

The bill allows employers to take the fruits of their workers’ labor without paying for it. Every other Washington employer is required to pay for this work time. Suggesting that farmworkers, who earn very little as it is, should not be paid for all their work, is bad policy.

For these reasons, we the undersigned organizations urge you to oppose SB 5720.

Sincerely,

ACLU-WA
AFT Washington Columbia Legal Services
Community to Community
El Centro de la Raza
Fair Work Center
Faith Action Network
Familias Unidas por la Justicia
IAM 751
IBEW 77
OneAmerica
National Employment Law Project
Progreso: Latino Progress
Puget Sound Advocates for Retirement Action
SEIU 925
Sheet Metal Workers Local 66
SPEEA, IFPTE Local 2001
Statewide Poverty Action Network
Teamsters 117
Teamsters Joint Council 28
UFCW 367
Washington Building Trades
Washington CAN
Washington Employment Lawyers Association
Washington Wage Claim Project
Washington State Labor Council, AFL-CIO
WPEA UFCW 365