Across the United States today, well over a quarter of a million farmworkers go without any federal guarantee of overtime pay. For the majority of these workers, this lack of protection can result in laboring for fifty-five or sixty hour workweeks at straight pay. With no reform to farmworker overtime on the horizon in Congress, labor advocates have brought their overtime reform efforts to state capitols across the country. This article surveys the rights to agricultural overtime pay as they currently exist at state law in California, Minnesota, Hawaii, New York, and Massachusetts. These six statutory frameworks illustrate the spectrum of agricultural overtime policies in place across the country.
In 1938, in the midst of the New Deal, President Franklin Roosevelt signed the Fair Labor Standards Act (FLSA) into law. The legislation, which is still in force today, focuses on protecting the average American worker—it provides for a national minimum wage and requires overtime pay for those working beyond forty hours per week. Placed into the FLSA, however, is a provision excluding agricultural workers from the legal right to receive overtime pay. Since passing the FLSA, Congress has not removed that exclusion. Therefore, for American farmworkers, the legal right to overtime pay only exists, if at all, at state law.
Rather than draft their own policy on overtime compensation, New York legislators have essentially copied the FLSA. By regulatory order, New York has adopted the overtime provisions of the FLSA, including the exemption depriving farmworkers of overtime protection. Thus, farmworkers laboring on any of New York’s many farms or dairies lack rights to receive overtime pay under both federal and state law.
Like New York, Massachusetts does not provide farmworkers with the right to overtime pay. However, unlike New York, Massachusetts has not formed this policy by merely importing the language of the FLSA into its statute. Rather, Massachusetts lawmakers have deliberately written their own agricultural overtime exemption provision. The provision’s homemade nature suggests that the reluctance to extend overtime rights to farmworkers is just as deliberate in the Massachusetts legislature as it is in Congress.
Technically, California has departed from the FLSA and requires employers to pay overtime to farmworkers. State regulations in the Golden State have extended overtime protection to farmworkers who work beyond sixty hours in a week. This difference from federal law implies that California’s policymakers, unlike those in Congress, have deemed farm work to be deserving of overtime compensation. However, the high threshold for triggering farmworker overtime eligibility—sixty hours—suggests that California’s policy is more of a symbolic gesture than a force for change. In order to significantly benefit from the policy, farmworkers in California would need to work nearly seventy-hour weeks—a daunting prospect.
Minnesota’s approach to agricultural overtime reaches further than California’s and includes some additional compromises. Under Minnesota law, farmworkers, along with most other workers, are entitled to overtime compensation after working forty-eight hours in a given week. However, the farmworker loses overtime eligibility if he is a salaried individual making more than the weekly equivalent of forty-eight hours at the Minnesota minimum wage plus seventeen hours of overtime at one-and-a-half times the Minnesota minimum wage. This approach—providing farmworkers access to overtime pay but cutting off relatively higher paid farm laborers—is an improvement upon the structure in place in California. For example, while a farmworker who labors for fifty-five hours a week receives no overtime pay in California, the same worker would receive seven hours of overtime pay in Minnesota.
The Hawaiian state government has adopted a unique approach to agricultural overtime. Hawaii’s policy seems to treat farmworkers as equal to other wage earners by requiring overtime pay for farmworkers who work over forty hours per week. However, the Hawaii statute also includes a farmworker-specific provision that diminishes their ability to accumulate overtime pay. The provision enables farm owners to select up to twenty weeks each year for which they will not be required to pay overtime to an agricultural employee until he or she has worked for forty-eight hours in a week. For farm owners who experience shifts in their demand for labor, this statutory grant gives them a special ability to reduce their overall overtime liability.