Ag. employers/overtime

AN ACT Relating to authorizing an agricultural employer to select 1
any 26 weeks in a calendar year as special circumstance weeks for 2
labor demand, during which in each of the selected 26 weeks, the 3
agricultural employer may employ agricultural employees for up to 50 4
hours before the requirement to pay overtime applies under RCW 5
49.46.130; amending RCW 49.46.130; creating a new section; and 6
declaring an emergency. 7
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:8
NEW SECTION. Sec. 1. (1) The legislature recognizes the vital 9
importance of Washington's agricultural labor force and its 10
contributions to the state's cultural, economic, and social 11
diversity. The legislature also recognizes the economic burden placed 12
on agricultural workers through the enactment of the overtime pay 13
law. Since its inception, the law has had the unintended consequences 14
of reduced hours of employment and a corresponding loss of earned 15
income.16
(2) In 2020, in a 5-4 opinion, the Washington supreme court ruled 17
in Martinez-Cuevas v. DeRuyter Bros. Dairy (DeRuyter) that the 18
existing exemption from overtime in agricultural employment was 19
unconstitutional as it applied to employment in the dairy industry. 20
In reaching its conclusion, the court distinguished between regular 21
H-0942.1
HOUSE BILL 1779
State of Washington 69th Legislature 2025 Regular Session
By Representatives Dufault, Mendoza, Jacobsen, Eslick, and Engell
Read first time 02/03/25. Referred to Committee on Labor & Workplace
Standards.
p. 1 HB 1779
hours worked in dairy production and the seasonal nature of 1
agricultural crop production. In 2021, the legislature repealed a 2
state law in effect since 1959 that exempted agricultural workers 3
from overtime pay, effectively extending the DeRuyter decision to all 4
production agriculture. With this historic legislation, Washington 5
became among the first states in the nation to impose an overtime pay 6
requirement for agricultural workers working more than 40 hours per 7
week. Recognizing that such a change would be a sizeable shift in 8
practice for all farmers and agricultural workers across the state, 9
the legislature adopted a phased-in approach, but did not address the 10
seasonal needs of Washington agriculture given the time-sensitive 11
nature of growing and harvesting mature field crops and perishable 12
fruits and vegetables. 13
(3) To assess potential impacts to Washington's agricultural 14
workforce, the legislature looks to the state of California that 15
adopted a similar phased-in policy in 2016 that came into full effect 16
in 2019, in which hours of work after 40 hours per week must be paid 17
overtime. In a study conducted by Alexandra E. Hill, assistant 18
professor in the department of agricultural and resource economics at 19
the University of California, Berkeley, she stated: "California's new 20
overtime law for agricultural workers went into effect in 2019. In 21
the two years following this, I find that the law led to decreases in 22
weekly working hours and earnings for California crop workers. These 23
losses are consistent with employers restricting hours to avoid 24
paying the higher overtime rates." California's experience is now 25
playing out in Washington as evidenced by nearly 300 farm workers 26
coming to the state capitol in January of 2024, demanding that the 27
current policy be changed and that their previous hours of employment 28
be reinstated. 29
(4) Agriculture is the second largest driver of Washington's 30
economy and is unique from other types of industry due to pressures 31
on farmers, ranchers, and workers caused by circumstances largely 32
beyond their control. These include the uncertainty of weather, 33
yields, livestock production, national and international shifts in 34
trade policy, and transportation inconsistencies. 35
(5) The legislature recognizes that in 2023, labor expenses per 36
farming operation in Washington were 462 percent higher than the 37
national average and Washington is currently losing on average, two 38
farms per day. The legislature further recognizes that farmers do not 39
control their own prices and cannot simply respond to increased 40
p. 2 HB 1779
production costs by increasing the prices of their goods. What 1
farmers can do and have done is reduce hours for agricultural workers 2
and limit harvest production due to increased costs directly related 3
to the elimination of the overtime exemption. These economic 4
pressures are also impacting agriculture workers' mental health, and 5
agriculture suicides are nearly 25 percent higher than the overall 6
state rate. From 2020 through 2022, the suicide rate for agricultural 7
workers in Washington state was 21.1 per 100,000 people, compared 8
with 14.9 per 100,000 people for the state's general population.9
(6) The legislature finds that it is reasonable to allow 10
agricultural employers limited flexibility to shape work schedules 11
during narrow windows of time to best fit the peaks of labor demand 12
for their crops and commodities and intends to make available limited 13
seasonal exemptions from the payment of overtime wages in furtherance 14
of its goal of ensuring security for agricultural workers and 15
maintaining the viability of Washington's second largest industry.16
Sec. 2. RCW 49.46.130 and 2021 c 249 s 2 are each amended to 17
read as follows: 18
(1) Except as otherwise provided in this section, no employer 19
shall employ any of his or her employees for a workweek longer than 20
forty hours unless such employee receives compensation for his or her 21
employment in excess of the hours above specified at a rate not less 22
than one and one-half times the regular rate at which he or she is 23
employed. 24
(2) This section does not apply to: 25
(a) Any person exempted pursuant to RCW 49.46.010(3). The payment 26
of compensation or provision of compensatory time off in addition to 27
a salary shall not be a factor in determining whether a person is 28
exempted under RCW 49.46.010(3)(c); 29
(b) Employees who request compensating time off in lieu of 30
overtime pay; 31
(c) Any individual employed as a seaman whether or not the seaman 32
is employed on a vessel other than an American vessel;33
(d) Seasonal employees who are employed at concessions and 34
recreational establishments at agricultural fairs, including those 35
seasonal employees employed by agricultural fairs, within the state 36
provided that the period of employment for any seasonal employee at 37
any or all agricultural fairs does not exceed fourteen working days a 38
year; 39
p. 3 HB 1779
(e) Any individual employed as a motion picture projectionist if 1
that employee is covered by a contract or collective bargaining 2
agreement which regulates hours of work and overtime pay;3
(f) An individual employed as a truck or bus driver who is 4
subject to the provisions of the Federal Motor Carrier Act (49 U.S.C. 5
Sec. 3101 et seq. and 49 U.S.C. Sec. 10101 et seq.), if the 6
compensation system under which the truck or bus driver is paid 7
includes overtime pay, reasonably equivalent to that required by this 8
subsection, for working longer than forty hours per week;9
(g) Any individual employed as an agricultural employee. This 10
exemption from subsection (1) of this section applies only until 11
December 31, 2021; 12
(h) Any industry in which federal law provides for an overtime 13
payment based on a workweek other than forty hours. However, the 14
provisions of the federal law regarding overtime payment based on a 15
workweek other than forty hours shall nevertheless apply to employees 16
covered by this section without regard to the existence of actual 17
federal jurisdiction over the industrial activity of the particular 18
employer within this state. For the purposes of this subsection, 19
"industry" means a trade, business, industry, or other activity, or 20
branch, or group thereof, in which individuals are gainfully employed 21
(section 3 (h) of the Fair Labor Standards Act of 1938, as amended 22
(Public Law 93-259)); 23
(i) Any hours worked by an employee of a carrier by air subject 24
to the provisions of subchapter II of the Railway Labor Act (45 25
U.S.C. Sec. 181 et seq.), when such hours are voluntarily worked by 26
the employee pursuant to a shift-trading practice under which the 27
employee has the opportunity in the same or in other workweeks to 28
reduce hours worked by voluntarily offering a shift for trade or 29
reassignment; and 30
(j) Any individual licensed under chapter 18.85 RCW unless the 31
individual is providing real estate brokerage services under a 32
written contract with a real estate firm which provides that the 33
individual is an employee. For purposes of this subsection (2)(j), 34
"real estate brokerage services" and "real estate firm" mean the same 35
as defined in RCW 18.85.011. 36
(3) No employer shall be deemed to have violated subsection (1) 37
of this section by employing any employee of a retail or service 38
establishment for a workweek in excess of the applicable workweek 39
specified in subsection (1) of this section if: 40
p. 4 HB 1779
(a) The regular rate of pay of the employee is in excess of one 1
and one-half times the minimum hourly rate required under RCW 2
49.46.020; and 3
(b) More than half of the employee's compensation for a 4
representative period, of not less than one month, represents 5
commissions on goods or services. 6
In determining the proportion of compensation representing 7
commissions, all earnings resulting from the application of a bona 8
fide commission rate is to be deemed commissions on goods or services 9
without regard to whether the computed commissions exceed the draw or 10
guarantee. 11
(4) No employer of commissioned salespeople primarily engaged in 12
the business of selling automobiles, trucks, recreational vessels, 13
recreational vessel trailers, recreational vehicle trailers, 14
recreational campers, manufactured housing, or farm implements to 15
ultimate purchasers shall violate subsection (1) of this section with 16
respect to such commissioned salespeople if the commissioned 17
salespeople are paid the greater of: 18
(a) Compensation at the hourly rate, which may not be less than 19
the rate required under RCW 49.46.020, for each hour worked up to 20
forty hours per week, and compensation of one and one-half times that 21
hourly rate for all hours worked over forty hours in one week; or22
(b) A straight commission, a salary plus commission, or a salary 23
plus bonus applied to gross salary. 24
(5) No public agency shall be deemed to have violated subsection 25
(1) of this section with respect to the employment of any employee in 26
fire protection activities or any employee in law enforcement 27
activities (including security personnel in correctional 28
institutions) if: (a) In a work period of twenty-eight consecutive 29
days the employee receives for tours of duty which in the aggregate 30
exceed two hundred forty hours; or (b) in the case of such an 31
employee to whom a work period of at least seven but less than 32
twenty-eight days applies, in his or her work period the employee 33
receives for tours of duty which in the aggregate exceed a number of 34
hours which bears the same ratio to the number of consecutive days in 35
his or her work period as two hundred forty hours bears to twenty-36
eight days; compensation at a rate not less than one and one-half 37
times the regular rate at which he or she is employed.38
(6)(a) Beginning January 1, 2022, any agricultural employee shall 39
not be employed for more than 55 hours in any one workweek unless the 40
p. 5 HB 1779
agricultural employee receives one and one-half times that 1
agricultural employee's regular rate of pay for all hours worked over 2
55 in any one workweek. 3
(b) Beginning January 1, 2023, any agricultural employee shall 4
not be employed for more than 48 hours in any one workweek unless the 5
agricultural employee receives one and one-half times that 6
agricultural employee's regular rate of pay for all hours worked over 7
48 in any one workweek. 8
(c) Beginning January 1, 2024, and except as provided in (d) of 9
this subsection, any agricultural employee shall not be employed for 10
more than 40 hours in any one workweek unless the agricultural 11
employee receives one and one-half times that agricultural employee's 12
regular rate of pay for all hours worked over 40 in any one workweek.13
(d)(i) An agricultural employer may select any 26 weeks in a 14
calendar year as special circumstance weeks for labor demand. During 15
each of the selected 26 weeks, the agricultural employer may employ 16
agricultural employees for up to 50 hours before the requirement to 17
pay overtime under this section applies.18
(ii) In addition to the records required to be kept under RCW 19
49.30.020, an agricultural employer is responsible for maintaining 20
records of which special circumstance weeks were utilized.21
(iii) An agricultural employer must provide an annual initial 22
disclosure of a good-faith estimate of the selected 26 weeks to their 23
agricultural employees at least 30 days in advance of the first 24
expected special circumstance week, or upon hiring for those who 25
start work fewer than 30 days in advance. For agricultural employees 26
employed under, and in compliance with federal requirements for, 27
temporary work visas, the disclosure of a good-faith estimate must be 28
made no later than the date of the worker's visa application, 29
contemporaneous with required federal preemployment written 30
disclosures to visa workers ordinarily due by the date of the 31
worker's visa application.32
(iv) An agricultural employee must be provided written notice, at 33
least annually, of which weeks will be special circumstance weeks, no 34
later than the seventh day before the first special circumstance 35
week, or upon hiring for those starting work after the seventh day. 36
The employer may change which are the special circumstance weeks 37
after that notice if:38
(A) The employer provides at least one week's written notice of 39
any week being added or removed as a special circumstance week;40
p. 6 HB 1779
(B) The initial disclosure was the employer's good-faith, 1
reasonable expectation of which weeks would be the special 2
circumstance weeks; and3
(C) The changes are based on circumstances not foreseeable at the 4
time of the initial disclosure.5
(7)(a) No damages, statutory or civil penalties, attorneys' fees 6
and costs, or other type of relief may be granted against an employer 7
to an agricultural or dairy employee seeking unpaid overtime due to 8
the employee's historical exclusion from overtime under subsection 9
(2)(g) of this section, as it existed on November 4, 2020.10
(b) This subsection applies to all claims, causes of actions, and 11
proceedings commenced on or after November 5, 2020, regardless of 12
when the claim or cause of action arose. To this extent, this 13
subsection applies retroactively, but in all other respects it 14
applies prospectively. 15
(c) This subsection does not apply to dairy employees entitled to 16
back pay or other relief as a result of being a member in the class 17
of plaintiffs in Martinez-Cuevas v. DeRuyter Bros. Dairy , 196 Wn.2d 18
506 (2020). 19
(8) For the purposes of this section, "agricultural employee" 20
means any individual employed: (a) On a farm, in the employ of any 21
person, in connection with the cultivation of the soil, or in 22
connection with raising or harvesting any agricultural or 23
horticultural commodity, including raising, shearing, feeding, caring 24
for, training, and management of livestock, bees, poultry, and 25
furbearing animals and wildlife, or in the employ of the owner or 26
tenant or other operator of a farm in connection with the operation, 27
management, conservation, improvement, or maintenance of such farm 28
and its tools and equipment; (b) in packing, packaging, grading, 29
storing or delivering to storage, or to market or to a carrier for 30
transportation to market, any agricultural or horticultural 31
commodity; or (c) (([in])) in commercial canning, commercial 32
freezing, or any other commercial processing, or with respect to 33
services performed in connection with the cultivation, raising, 34
harvesting, and processing of oysters or in connection with any 35
agricultural or horticultural commodity after its delivery to a 36
terminal market for distribution for consumption. An agricultural 37
employee does not include a dairy employee. 38
(9) For the purposes of this section, "dairy employee" includes 39
any employee engaged in dairy cattle and milk production activities 40
p. 7 HB 1779
described in code 112120 of the North American industry 1
classification system. 2
NEW SECTION. Sec. 3. This act is necessary for the immediate 3
preservation of the public peace, health, or safety, or support of 4
the state government and its existing public institutions, and takes 5
effect immediately.6
--- END ---
p. 8 HB 1779