Agricultural workers have long been excluded from receiving overtime pay in Oregon, but HB 4002 aims to change that. The proposal has been advancing in the state legislature. Martha Sonato, Political Director at PCUN, joins us to share why these workers deserve overtime pay. We’ll also hear from Elise Higley, the owner of Oshala Farms, on how this bill would affect her farm if it were to pass.
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Note: The following transcript was computer generated and edited by a volunteer.
Dave Miller: In 1938, overtime pay became the law of the land for most workers in the U.S., but not for farm workers. That has only changed very recently in a handful of states, including California and Washington. Some Oregon lawmakers want to join that list. So they’ve put forward House Bill (HB) 4002. It would phase in overtime by 2026. Farm workers would have to be paid time and a half for each hour they work over 40 hours in a week. Martha Sonato is in favor of this bill. She is the Political Director at PCUN. It’s a union for farm workers and tree planters. Elise Higley opposes the bill. She’s an owner of Oshala Farms, an organic herb farm in the Applegate Valley. Welcome to you both.
Elise Higley: Thank you.
Martha Sonato: Thank you. Thank you so much for having me.
Miller: Elise Higley, can you describe your operation and how farm worker pay works right now?
Elise Higley: Sure. We have a 145 acre farm. It’s certified organic. We have about 10 to 12 full-time people and then we have about 28 at the height of the season. We grow 80 different crops. We’re just starting to plant out now, so the height of the season really lasts from May until the fall.
Miller: The height of the season does last for a while, for something like half the year?
Miller: And what kinds of hours do your employees work?
Higley: In full season, most people are working 60 hours a week, as an option.
Miller: Sixty hours a week, divided up into how many days?
Higley: Six days a week.
Miller: So six days a week, 10 hours a day. That’s for the majority of your workers?
Higley: Yeah, that choose to. We have the option to work that much. But actually everybody on the farm except two people last year who just did the five-day week.
Miller: But everybody else said ‘We want extra hour. We want to get more pay?’
Higley: Exactly, yeah.
Miller: Martha Sonato, what’s wrong with the way farm worker pay works in Oregon right now?
Martha Sonato: I think you explained that, back in 1938, the Fair Labor Standards Act made a very intentional decision to exclude farm workers who at the time were mostly Black. There are plenty of historical records from legislators at that time explaining why they thought this exclusion made sense. Fast forward 84 years later, we still continue to have this racist exclusion in our overtime law. Oregon currently does have an overtime law, but does not extend it to farm workers who are about 87,000 farm workers in Oregon that earn a median annual income of $28,000 a year. So, this is about equal pay. I think this is about equality. This is about making sure that farm workers are compensated equally and fairly, like all other workers are.
Miller: Martha Sonato, can you explain what the new system would be if this bill were to pass?
Sonato: Yes. Like you I think you said, this HB 4002 B applies to hourly and piece rate workers. So, that means that whenever farm workers all across Oregon work past that hourly threshold, that triggers overtime pay, then that’s when employers would have to pay at one time and a half the regular rate of pay for that worker. Now, HB 4002 B is actually phased in transition, so that means that starting for 2023 and 2024, the overtime threshold is at 55 hours and then after the next two years, that decreases down to 48 eventually getting to overtime pay after 40 hours by 2027.
Miller: So Elise Higley, you and and other farm owners would have four or five years to phase this in. How big a difference would that make for you?
Higley: First of all, I want to say that our farm workers and employees are like our family and I think most small farms and Oregon are probably the same. I know hundreds of farmers. We pay our farm workers really well because they work a lot of hours and parts of the year and not as much in other parts of the year. So the phase out, I get why it’s being brought up, but I think it’s kind of a short term incentive for a bill that’s going to have a long term effect. My biggest argument with being against it right now is just that we’re being hit like David had said earlier in the show about climate changes. Farms have gotten hit left and right between COVID-19, climate change, wildfires, smoke, everything, the rising increase of pay. We started our farm workers at $15.50 and our average pay is in the $20 range. If we’re paying time and a half, we can’t keep food costs the same without making some changes. So I think it’s a really big discussion that needs to be dealt with and we need to understand why farm workers are exempt.
I feel like it’s exempt, it’s not a racial issue, but it’s more just a practicality of everybody knows who farms. Nobody works 40 hours. I mean, we all work 60-70 hours in the height of the season. But I hear that people say that it needs to be addressed, but I don’t think the short session is the time to do it because everything’s just crammed and people are trying to push things through and this bill is going to have a huge long term effect. We haven’t seen it all roll out in California and Washington too well, so I think that it would be prudent for something that has such a major shift on people’s lives and the economy and the people that grow food for the state that we should really think about this and have all the players at the table and come up with a solution that works for the majority.
Miller: Martha Sonato, the legislatures in California and then Washington have both passed overtime requirements in recent years that they’re being phased in with at different schedules. It seems that we’re still in the early stages of seeing what that’s going to mean in those two states, to Oregon’s south and north. What have you seen so far though?
Sonato: Yeah, I think you’re right. The overtime laws for farm workers in both states are fairly recent. For Washington, their overtime law for farm workers actually came into effect this year just last month and for California, it’s been a very, very long process – I think about eight years in transitioning – and their law also looks a little bit different because their law does phase in smaller farms at a different timeline than larger farms. I think it’s still too early to say, but I think what I do want to highlight is that in Oregon, and also just through the work that we do in coalition with advocacy and farm worker groups in Washington and California, is that there is just overwhelming support from farm workers to be compensated equally and fairly. We ourselves have been bombarded with questions from farm workers throughout the years of ‘why am I not paid overtime? Why do farm workers not get that benefit?’
Miller: We did hear the reason just now from Elise Higley saying it’s not a question about racism. It’s because farm work is categorically different. As she said, everybody knows that, especially during the height of the growing season or harvesting time, you can’t get the work done in 40 hours a week. What’s your response?
Sonato: I think that’s true. I think that there’s definitely peak seasons and that’s when farm workers work the most. And that’s when they are making the most money. So, I think during that particular time, it’s extremely important that they get paid overtime when it’s the most needed, when they are working those really, really long hours.
Miller: Elise Higley, let’s turn to some specifics in terms of your best guess or estimate of what this bill would mean if it became law for your own operation. If you have 10 to 12 full time employees and dozens more who work for a good chunk of the year, all working six days a week at 10 hours a week, what would you do in terms of your workforce if you had to pay them time and a half for every hour past the 40th hour?
Higley: If I were a California farmer – and it’s a different kind of crop growing which is much less diverse – we would mechanize as farmers and invest in equipment and we would stop having as many employees, which is what California has done. But we don’t have hundreds and thousands of acres in one crop. We’re a diverse crop production, many vegetable farms are along with herbs. So for us, again, if we had an onslaught of people to pick from, you would have people work 40 hours and you have split shifts, or you would have another crew come in the afternoon and have people come out early. But the reality is that I think all businesses can relate right now as it is nearly impossible to find employees. So the last few years, what we’ve done is just really pay people a high hourly rate, and our fear is that if this passes our market can’t justify the higher prices then we would have to cut people’s hours and then they’re in turn going to have to go get jobs someplace else. So they’d be doing two jobs at another place and then at that point, why would they want to stay in agriculture, driving back and forth to jobs?
Miller: Martha Sonato, I’m curious what you make of this mechanization argument, because we heard just now from Elise Higley and that’s been one of the big arguments made by other opponents of this bill. I hear it almost like an implicit threat, not saying if you do this, we’re gonna do this, but if you do this, we will have no choice but to be mechanized and to have robots do the job that used to be done by people. Would you rather have more farm workers have jobs under the current conditions or fewer of them that might pay more if they do get a chance to get over time but few of them because there are more robots doing what used to be their jobs?
Sonato: Thank you for that question. I first want to address mechanization. I just want to clarify whether that has already been happening with an overtime bill or not. That is a thing. And advocates have been in multiple stakeholder groups and conversations and we have also heard from a lot of growers about how mechanization is not really something that they’ll be able to do because some of their folks that have actually tried to go into mechanization and had to go back to hand harvest just because some crops are very challenging to mechanize because you have to really take care of that product. And so it’s bringing it back to the court that mechanization is already happening with or without this bill. But I think what we can do is try to address the labor shortage concerns that have consistently come up. I do think that an overtime bill with profound records here in Oregon will benefit growers and workers, too, in staying competitive with our neighboring states, Washington and California.
Miller: Just briefly, Martha Sonato. We’re talking here about a legislative debate, but there is a parallel legal fight happening right now that could lead, if I’m not mistaken, to an administrative change. How much could the Labor Commissioner’s office do if this bill does not pass?
Sonato: Recently farm workers and a social services organization brought forth a lawsuit against Oregon Labor Commissioner, Val Hoyle, essentially letting her know that the Bureau of Labor and Industries (BOLI) does have the authority to extend overtime pay through the rulemaking process. What we’ve heard from the Commissioner is that, if the legislature failed to pass a legislative solution, that BOLI will indeed start a rulemaking process with stakeholders. But I think a major difference through that route is that the commissioner doesn’t have authority over being able to provide financial supports that are currently in place and helpful in 4002 B with a refundable tax credit. So, I think that would probably be a major thing and what we have heard from Commissioner Hoyle is that the agency would institute a rule that also eventually gets to a 40-hour threshold for farm workers.
Miller: Martha Sonato and Elise Higley, thanks very much.
Higley: Thank you.
Sonato: Thank you so much.
Miller: We’ve just received word that bill has passed out of the House on a 37 to 23 vote. It now heads to the state Senate.