Legislators can right this historical wrong

Farm workers were excluded from the New Deal. The Legislature can fix that.

By JEFF JOHNSON

(March 9, 2021) — Eighty-five years ago, farmworkers and domestic workers were excluded from the New Deal legislation that provided a measure of economic security and a means for working people to accumulate some wealth while helping to pull our economy out of the Great Depression.

But what we didn’t learn in school was that the New Deal didn’t apply to all workers. President Franklin Roosevelt was clear about the Faustian bargain made with Southern Congressional leaders when he responded to why he did not support anti-lynching legislation:

“I’ve got to get legislation passed by Congress to save America. The Southerners by reason of the seniority rule in Congress are chairman or occupy strategic places on most of the Senate and House Committees.

“If I come out for the anti-lynching bill now, they will block every bill I ask Congress to pass to keep America from collapsing. I just can’t take that risk.”

In the 1930s, more than half of the Black population in America lived in the South and they were disproportionally employed in agriculture and domestic work. As a result, farmworkers and domestic workers were exempted from minimum wage and overtime protections, unemployment benefits, collective bargaining rights and Social Security benefits.

Using race-neutral language, structural racism was built into the New Deal statutes, which perpetuated exploitation and subordination of Black workers in the Jim Crow South.

While some of these exclusions have since been removed, farmworkers and domestic workers are still excluded from overtime protection and wages and the right to collectively bargain.

In the absence of the right to overtime pay and the right to organize, farmworkers and domestic workers remain the most vulnerable and exploited workers in our society. As a class of workers, they are subject to sub-standard wages, grinding poverty, harsh working conditions, exposure to dangerous pesticides and chemicals, little or no health insurance, no effective voice at the workplace, and the inability to accumulate wealth.

Over the past 30 years, farmworkers in Washington state have gradually won the rights to minimum wage coverage, unemployment benefits, child labor standards, workers’ compensation, and some pesticide protections. But they are still without the right to overtime and collective bargaining.

In a Nov. 5, 2020, Washington State Supreme Court decision, farmworkers who work in dairies won the right to overtime pay for hours worked over 40 hours in a week. In a 5-4 decision the court found that the exemption from overtime granted to agriculture was in violation of our state constitution, which guarantees “a fundamental right for Washington workers to health and safety protections.”

The court found that farmworkers by constitutional right should be paid overtime because they “work long hours in conditions dangerous to life and deleterious to their health.”

Based on similar reasoning, other overtime suits have been filed against non-dairy farming businesses.

Substitute Senate Bill 5172, if passed by the legislature and signed into law by Gov. Inslee, would for all intents and purposes end expanding overtime litigation and correct an injustice that has stood for over 80 years.

SSB 5172 is a common-sense solution to a problem rooted in our country’s racist past while creating a mechanism for agricultural employers to absorb the cost of compensating farmworkers for overtime work without jeopardizing their businesses.

This bill recognizes the fundamental right of farmworkers to be paid overtime for hours worked over 40 hours a week prospectively and retrospectively for three years. It also provides agricultural employers with an affirmative defense against lawsuits if they adhere to the provisions of the bill. This will save the industry millions of dollars in legal and administrative fees and also cushions employers’ bottom lines by allowing structured payments over time.

The timing of the Washington State Supreme Court Decision Martinez-Cuevas v. Deruter Brothers Dairy, Inc. and SSB 5172 could not be more appropriate. Over the past year, the COVID-19 pandemic has made us all aware of just how “essential” farmworkers are to putting food on our tables to sustain our families while farmworkers personally risk illness and death as well as put their family members at a greater risk.

It is time to course correct Roosevelt’s Faustian bargain. It is high time that we ended the overtime pay exclusion for farmworkers in Washington state.