OT bill could hurt farm workers

JULY 7, 2010

By KATY GRIMES

Agriculture workers aren’t the only employees exempted from the state’s overtime laws, however, SB1121, authored by Sen. Dean Florez, D-Shafter, would remove the overtime exemption for agricultural employees only.

“SB 1121 would change the law to require payment of overtime after an eight-hour workday or 40 hours per week,” explains the California Farm Bureau. “Ultimately, SB 1121 would hurt both the farm worker and employer by limiting worker hours and requiring the employer to hire more workers to make up the difference.”

Agricultural workers are already entitled to California overtime for all work beyond 10 hours in a workday, as well as weekly overtime pay. The bureau reports that only three other states require overtime pay for agricultural workers, and none has such low thresholds as proposed in this bill.

Currently awaiting the governor’s signature, SB1121 singles out one of the many exempted employees from California’s overtime law. The bureau urges the governor to veto the bill.

“I am hopeful that the governor’s experience as an immigrant who initially supported himself through manual labor will give him empathy to grasp the importance of this bill to some of California’s hardest workers,” Florez released in a written statement.

California’s overtime laws are complex and largely appear to be driven by the political party in power.

Overtime was enacted many years ago, to compensate employees who were being “overworked” by employers, defined by the government as working employees beyond eight hours in one workday. Overtime law requires employers to pay employees overtime equaling and one-half of employees’ hourly pay for working more than eight hours in one day, as well as more than 40 hours in one week. Double-time is paid after 12 hours in one day, and again on the seventh consecutive workday in one week.

In effect through 1997, the old daily overtime rules required only certain industries that had specific wage orders regulating them, to pay overtime daily. Manufacturing and clerical workers were subjected to the daily overtime laws, but construction, mining and logging were not, so they could instead opt to pay daily overtime or defer to the federal standard of paying overtime after 40 hours worked in a workweek.

In 1998, Gov. Pete Wilson signed legislation relieving California’s employers from the state’s daily overtime laws, allowing employers to pay overtime after 40 hours in one week, instead of the daily overtime. Widely hailed as a pro-business move, Wilson’s goal was to give employers and employees more flexibility in production and schedules. Labor union representatives were outraged, and claimed their members would lose income with the overtime change.

Almost immediately, Assemblyman Wally Knox, D-Los Angeles, authored AB60, authored by, and was referred to as organized labor’s reaction to Wilson’s elimination of daily overtime. In 1999, Gov. Gray Davis, signed AB60, called the “Eight Hour Day Restoration and Workplace Flexibility Act of 1999,” dramatically changing the state’s overtime compensation laws. The act went into effect for most employers on January 1, 2000, however the list of exemptions was long, and included public employees.

The 1999 act’s most dramatic change was the restoration of the daily overtime requirement. Ironically, union employees covered by a collective bargaining agreement were not covered by AB60, nor were public employees.

Federal law, and the vast majority of states, only require that overtime be paid for hours worked in excess of 40 per week. However, California requires that overtime be paid after eight hours work in one workday and after 40 hours work in one workweek.

The daily overtime requirements must be met regardless of the total number of hours worked during the week. For employees who work seven consecutive days during the workweek, the act requires that the employee be paid one and a half times the regular rate of pay for the first eight hours worked on the seventh day of work in a work week, and two times the regular rate of pay for all hours worked in excess of eight on the seventh day. Irrespective of the amount of time the employee has worked during the preceding six days, the seventh day pay requirements apply.

The exemptions to overtime laws are extensive. Overtime wage orders expressly exempt public employees. Under listed exemptions, the Department of Industrial Relations (DIR) Web site reads, “Employees directly employed by the State or any political subdivision thereof, including any city, county or special district,” exempting state employees from state law, but requiring private sector employers to comply.

Public employees are not the only employees exempted from the state’s overtime laws according to the DIR. The list of exempt jobs is long:

• Unionized employees working under a collective bargaining agreement
• Truck drivers
• Computer software employees
• Airline employees
• Sales representatives
• Taxi-cab drivers
• Nurses and student nurses
• Professional actors and film projector operators
• Commercial fishing employees
• Radio or television announcers and news editors
• Sheepherders
• Irrigators
• Personal attendants
• Babysitters

Additionally, “Comp time” or compensatory time, used to be a discretionary decision between employee and employer, allowing the employee to take time off instead of receiving pay for working extra hours. Current law states that comp time must now be used within the same pay period, and is to be taken at the overtime rate of time and one-half.

In 2000, in anticipation of another change in overtime laws with Davis being elected, a survey of 6,000 American and Canadian workers by Randstad North America, found that employees want flexibility in schedules more than career advancement and higher pay.

62 percent said they prefer a boss who understands when they need to leave work for personal reasons over one who could help them grow professionally, which is how most comp time is used. 51 percent of employees prefer a job that offers flexible hours over one that offered an opportunity for advancement.

Last week during an Assembly session about SB1121, Assemblyman Anthony Adams, R-Hesperia spoke about agriculture workers losing pay if the overtime laws went into effect. Criticizing fellow legislators, Adams said that because they would be so heavily regulated during growing seasons when they normally work extra hours, agriculture workers would lose out by hours being cut by employers, trying to avoid having to pay overtime. Adams said, “I suggest you need to feel good about yourself,” to legislators and called the legislation “morally repugnant.” Adams described the finite time available for agriculture workers to work, and said, “Migrant workers work harder than any of us ever have.”

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  1. EastBayLarry
    EastBayLarry 8 July, 2010, 05:11

    More ‘feel good’ legislation and still no budget.

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