Retroactive Overtime is Fiction

unished for following the law: Is your business next?

By PAM LEWISON  |  BLOG Feb 17, 2021  

Imagine paying off the mortgage to your home in full and on time. Then, a month later, receiving a letter from the bank outlining an additional three years of payments owed because the bank decided your interest rate changed after you’d paid your mortgage off.

That is the discussion playing out in agriculture during this legislative session. Instead of mortgage it is farmworker wages, and instead of interest rates, it is the seeking of additional wages related to a court case.

Substitute Senate Bill 5172 would require all agricultural employers to pay three years of overtime for employees employed before Oct. 11, 2017 with an additional 12 percent annual interest penalty. If employers are not able to locate those employees and pay them directly, then the funds are deposited into a department of labor and industries escrow account until those employees can be located and compensated.

The problem with the amended legislation is that at no point before Nov. 5, 2020 was it mandatory for agricultural employers to pay their employees overtime. The amended legislation uses a crystal ball and reaches back in time to create an artificial enforcement timeline.

On Nov. 5, 2020, the Washington State Supreme Court ruled working in dairy production in our state was an inherently dangerous job, thus making it unconstitutional to make it overtime exempt. The court ruling changed the rules, requiring dairy producers in Washington state to pay overtime wages to all employees working more than 40 hours a week. According to dairy employees, the ruling has hurt them more than it has helped, with one worker noting, “it has happened already, where my check is smaller” as a result of the new requirements.

More importantly, before Nov. 5, 2020, any dairy owner with employees, choosing to pay their employees a flat wage rather than overtime, was not breaking the law. They were paying their employees the lawful amount of wages owed. Suggesting dairy owners should pay their employees additional wages over and above what they were paid prior to the court ruling is illogical.

The original version of Senate Bill 5172 sought to put an end to punitive lawsuits seeking additional wages from any employer, agricultural or otherwise, retroactively in the event the law changed. Currently, dairy producers are the only segment of the agricultural community required to pay overtime wages. No other agricultural employer is legally required to pay overtime wages.

Farmworkers and farmers both lose with this decision. Farmworkers are losing flexibility and income because dairy farmers are now being held hostage by new wage requirements. Farmers and ranchers are losing valued employees because they have to adjust wages to meet their budgets.

The specter of being punished for following the law is something no one should have to be concerned with. When the court ruling changed the overtime status of dairy workers in November 2020, it did not change the fact that they had been fully compensated for their previous work. Nor did it change the fact that employers were following the law by paying their employees in full.

There is no backpay owed to dairy workers or any agricultural employees in our state. There is only a need to protect all employers from lawsuits that would potentially close their businesses moving forward.

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