Farming is not an easy occupation. Having lived on a farm, I know all about getting up at 4:00 am everyday to milk cows. Ag workers know that the work doesn’t stop simply because it is a holiday or a weekend. Although agricultural workers are some of the hardest working people in society, they are also often the victim of wage and overtime theft. This is especially true of migrant workers who move from job to job.
FLSA and the Migrant and Seasonal Worker Protection Act
Congress passed the Fair Labor Standards Act – FLSA – in 1938 during the Great Depression. The law assured that most American workers would receive at least a minimum wage, pay for all time worked and overtime at premium rates (time and one half) after 40 hours in a 7 day period.
Unfortunately, farm and ag workers were largely exempt from the overtime provisions of the law. Some workers on small family farms are even exempt from the minimum wage provisions. Overtime is available, however, for nonagricultural duties. For instance, a worker that picks apples for 50 hours should get paid for 50 hours but the extra 10 hours are not at time and one half. If that same worker fixes a delivery truck during that period, then the extra hours are subject to overtime pay.
Congress passed a second law called the Migrant and Seasonal Worker Protection Act in recognition of the particular hardships of itinerant workers. Many of these folks are not U.S. citizens. Instead they are allowed to help gather crops through a special H-2A visa program.
Unfortunately, ag workers in general and migrant workers especially suffer from a lack of legal representation. No one is protecting their rights so they often find themselves victims of wage theft.
In 2014, the Department of Labor’s Wage and Hour Division conducted a review of agricultural companies in the Yakima Valley area of Washington State. Thus far the agency has found over 2000 ag workers have not been properly paid. Many were found to not even be on the books.
Although wage theft is a huge problem for farm workers, paying cash and keeping them off the books could mean additional problems if there are later workplace injuries or unemployment claims. Thankfully, the FLSA and Migrant Workers law provide an opportunity for many workers to receive double damages and legal fees. The legal fee provision is a big boon to workers since without it, most ag workers couldn’t afford legal help.
DOL’s Yakima Valley Audit
Not all companies in the Yakima Valley were audited. Records released to the Yakima Herald pursuant to a Freedom of Information Act request revealed the following, however:
Borton Fruit company: $98, 234 in wages. Mostly overtime to workers in the company’s mechanical shop.
Valicoff Fruit Co.: $66,890 in wages. Company failed to count production line down time as time worked. The downtime was attributable to equipment breakdowns. Even if a machine breaks, workers should still be paid if on the premises and waiting for repairs.
Zirkle Fruit Co.: Company failed to pay 1,295 ag workers for time spent in mandatory orientations. The workers were hired through the H-2A visa program to pick blueberries. The law requires workers to be paid for mandatory pre and post shift activities and training.
Standleman Fruit: Company failed to pay packing house employees for down time attributable to mechanical breakdowns and misclassified one worker as an exempt manager. (Only true managers are exempt from overtime.)
As these cases indicate, wage and overtime theft is common among ag workers. If you believe you have been denied overtime or proper pay, contact us. Even if you are not a U.S. citizen, you are still protected by the law. That also includes the laws anti-retaliation provisions.
Worried about the cost of hiring a lawyer? Don’t be. There is never a charge for our services unless we collect money for you. All inquiries are also protected by the attorney – client privilege meaning they are kept confidential.
For more information, contact attorney Katherine Holiday at *protected email* or by telephone at (414) 258-2375. You can also visit our FLSA information page. We are happy to arrange evening calls. Collective cases handled across the United States. [Hablante de español disponibles]
MahanyLaw – America’s FLSA and Overtime Lawyers
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