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July 2016, Volume 22, Number 3

California: Overtime Fails

AB 2757, the Phase-In Overtime for Agricultural Workers Act of 2016, would have removed an exemption by January 1, 2022 that requires overtime pay for farm workers after 10 hours a day or 60 a week, unlike the standard eight hours a day and 40 hours a week for nonfarm workers.

California is one of four states that requires overtime pay for farm workers; the 10/60 standard was established in 1976. AB 2757 failed in the Assembly June 2, 2016 on a 38-35 vote; 41 votes were needed for passage. However, the overtime bill re-emerged as AB 1066.

There is very limited data on hours worked by California farm workers. The USDA's Farm Labor Report reported that US hired farm workers were employed an average 39 hours a week in January 2016, compared to 41 in California and almost 47 in Arizona and New Mexico. Hours per week were higher in October 2015, almost 42 across the US and 44 in California, and in July 2015, 41 across the US and almost 44 in California, and in April 2015, 40 in the US and 42 in California.

Arizona and New Mexico consistently have the longest average work weeks, often 46-47, while Hawaii consistently has the shortest work week, an average 37 hours.

The USDA data are averages for all types of workers, crop and livestock and year-round and seasonal. They require two caveats for California. First, over three-fourths of the workers reported to USDA are employed on the farm 150 days or more, that is, the USDA workers are disproportionately long-season and livestock workers. Second, the USDA data do not include workers brought to farms by crop support contractors, who bring the majority of workers to farms in California.

Most seasonal harvest workers work less than eight hours a day, but some work six days a week; a seven-hour, six-day worker would work 42 hours, although many farmers schedule only half a day's work on Saturday. Most of those likely to be affected by 8/40 overtime are employed in livestock or work as irrigators and equipment operators, where 12 hour days are common during busy periods.

Housing. Betteravia Farms in June 2016 won approval from the Santa Barbara Planning Commission to build housing for 600 H-2A workers outside Santa Maria. The Curletti Guest Worker Housing Project on eight acres off Highway One is expected to be ready for the 2017 harvesting season, with 30 houses of 1,443-square-feet each housing 20 workers. Vegetable grower Betteravia hires 400 workers year-round plus 400 provided by a contractor.

Bonita Packing Company (Bonipak) now houses 130 H-2A workers at Broadway Eleven in Santa Maria, formerly a Budget Inn.

Some of the houses being built to accommodate 112 H-2A workers for Mar Vista Berries in nearby Nipomo were burned in April 2016 in what has been determined to be an arson attack. Many neighbors were opposed to the housing because they did not want farm workers living in the community. They noted that Mar Vista grows berries on leased land, and that the berry farm could move on and leave the bunk-bed housing behind.

In 2014, Fresh Harvest Inc, California's largest H-2A employer, was blocked from buying and converting Olivera Street Apartments in Guadalupe by an emergency city ordinance.

Shortages. Growers are complaining of labor shortages, noting that fewer workers are showing up for job fairs when seasonal packinghouses prepare to open and that crews that should have 60 workers have only 50 or 55. Most growers reported that they are getting farm work done, but at higher costs and with lower-productivity workers.

Anthropologist Sarah Horton argues that Central Valley farmers use "ghost employees," such as having two workers employed under one worker's ID or "lending" valid documents to others, in order to minimize problems if ICE agents check payroll records, to hide the employment of teens under 18, and to have workers employed under their own name more than 10 hours a day or 60 a week, after which they would have to receive overtime pay. There are no credible estimates of how often document lending occurs.

The Teamsters in June 2016 said they would continue to target Taylor Farms Tracy, California plant. The Teamsters lost a vote for representation, 154-168, in March 2014, but the Teamsters alleged unfair labor practices.

Due to two court rulings, California farmers who paid piece-rate wages and did not separately compensate piece-rate workers for required rest periods owe these workers pay for the rest periods equivalent to their average piece-rate earnings between July├┐1, 2012 and December 31, 2015. Employers must notify the Department of Industrial Relations by July 1, 2016 if they are taking advantage of a "safe harbor" provided by AB 1513 to pay workers any back wages by the end of 2016.

Marijuana. California enacted a law governing the production and distribution of medical marijuana. Business and Professions Code Section 19322(a)(9) says that recipients of "cultivation licenses" who have 20 or more employees are "agricultural employers" under the ALRA "to the extent not prohibited by law."

As the medical marijuana expands, the question is how much jurisdiction the NLRB will exercise over employment in the marijuana industry. The ALRA will cover workers employed in marijuana who are not covered by the NLRA.

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