Charles H. Sloan-These farmworkers thought a new overtime law would help them. Now, they want it gone

ELTOPIA,Charles H. Sloan Wash. — For Patricia Mendoza, working overtime was just a way of life.

During harvest season, she could put in 70 hours a week preparing the fields, planting seeds, and harvesting produce at Schreiber Farms in southeastern Washington state.

So she was happy when she learned that starting in 2022, she would be paid an overtime wage like workers in other industries.

In the United States, hourly workers have the right to earn 1.5 times their regular wage when they work more than 40 hours in a week. But under the Fair Labor Standards Act, agricultural workers are excluded from those protections, a relic of a Jim Crow-era compromise.

In 2021, Washington state passed legislation to level the playing field. The law began phasing in last year, and by 2024, farmworkers will finally join other workers in earning time-and-a-half after they reach 40 hours in a week.

For Mendoza, the change brought so much promise.

"I told Alan, 'You're going to have to pay us a lot of overtime!'" Mendoza says in Spanish about her longtime boss Alan Schreiber, who owns Schreiber Farms.

However, it has not turned out that way.

"Take away the overtime"

Washington's overtime law included a three-year phase-in, meant to ease the process. Last year, overtime pay kicked in after 55 hours a week. This year, the threshold is 48 hours, and next year it drops to 40.

Schreiber says already, he cannot afford to pay overtime. Instead, he's brought in additional workers to spread the hours around. It's allowed him to keep nearly all his workers to 48 hours a week, not more.

This dramatic loss in hours has led Mendoza to a difficult conclusion.

"Take away the overtime," she says.

Fruits and vegetables don't take weekends off

The law was billed as a significant and long overdue win for farmworkers who routinely work 10-hour days given everything that has to be accomplished in a relatively short window of time. As farmers point out, fruits and vegetables don't stop growing on the weekends.

President Biden has pushed for overtime for farmworkers nationwide, without success.

"It is long past time that we put all of America's farmworkers on an equal footing with the rest of our national workforce when it comes to their basic rights," Biden said in a statement congratulating Washington state.

There has been movement on the state level. New York, Colorado and Oregon are among those also phasing in laws requiring overtime for farmworkers.

But what's unfolded in Washington state shows just how complicated change is, even when there's agreement that change is needed.

Problems arise even before overtime law is fully phased in

Farm owner Schreiber is already feeling stretched.

"The economics are painful," he says while looking over his 165-acre farm in the lower Columbia Basin.

Especially for small farms like his. Close to a quarter of his acreage is asparagus, among the most costly crops to produce. Labor accounts for half of the costs, he says, in part because of how fast asparagus grows. When it's hot, spears can shoot up as much as nine inches in a day. Some days, an asparagus field needs to be cut twice.

"It is stoop labor. It's hard work," says Schreiber, who also serves as executive director of the Washington Asparagus Commission. "No asparagus grower begrudges the wages that they pay because they know that it's hard work."

Skilled cutters can earn more than $30 an hour. If he were to pay 50% more for even some of the hours needed during the asparagus harvest, Schreiber is certain he would lose money.

After all, he says, he cannot raise his price on a box of asparagus by 50% just because it was cut on a Sunday.

With additional costs stemming from seed, fertilizer, water and fuel, his margins are already thin.

"The addition of overtime makes our already high labor costs completely uncompetitive to Mexico and Peru," says Schreiber, citing the top two asparagus exporters to the U.S. In both countries, cutters make less in a day than Schreiber pays in an hour.

A workaround creates a rift with longtime employees

For now, Schreiber has found a workaround. For the first time, he hired a labor contractor to bring in additional workers this year. Now, he's able to keep almost everyone to 48 hours a week and avoid paying overtime.

While it's temporarily solved the economics for him, it has created a rift with his employees, many of whom have been with him since he started farming more than two decades ago.

"We're forced into this situation where we have to make difficult choices," he says. "If I'm not profitable, none of these people will have the jobs that they want to be at."

During the April to June asparagus season, Mendoza used to work seven days a week, splitting her time between the asparagus fields and other tasks such as weeding, thinning and planting watermelon.

It was hard work and good money. Schreiber says workers could take home $1,400 a week.

"That was their best money for the whole year," he says. The earnings help sustain families through the winter when work dries up. But now, with workers capped at 48 hours a week, no one is even reaching $1,000.

This year, Mendoza and two other women approached Schreiber and told him that if he was limiting them to 48 hours a week, they wouldn't cut asparagus this year. They didn't want to be on the farm seven days a week as required during the asparagus harvest.

They had their own economic puzzle to figure out, and fewer hours meant it no longer made sense to pay for child care for all of those days.

"We'll have to work two jobs"

The women say inflation is compounding their loss of income. Gas and food are more expensive, so they're cutting back on things like new clothes and shoes for the children.

Mendoza's coworker Maria Madrigal has heard the argument put forth by some labor advocates that less time in the fields means more time at home with her children. She disagrees.

"If we can't cover our expenses, we'll have to work two jobs," she says in Spanish.

Schreiber says the overtime law has dealt him the biggest workforce challenge he's ever faced.

"There's no second to this," he says, adding that he doesn't know what he'll do next year when the overtime threshold falls to 40 hours a week.

"I can't hold my employees to 40 hours, because it's just not enough to live on."

Possible solutions: a seasonal exemption, a tax credit and higher prices

Earlier this year, the Washington state legislature considered a seasonal exemption from the overtime law. Under the measure, farmers could choose 12 weeks a year during which overtime pay wouldn't kick in until workers exceeded 50 hours in a week.

The bill didn't make it out of committee, but many labor advocates expect it'll be back next year.

To Democratic state Sen. Rebecca Saldaña, a seasonal exemption is unthinkable. She says feeding our nation should not be sacrificial work.

"Your bodies matter, and if you work more than 40 hours, that is a sacrifice," Saldaña says, pointing out that other industries, including construction, have figured out how to pay overtime.

Other states with overtime requirements for farmworkers have taken different approaches. New York state is introducing a tax credit for farm owners, essentially reimbursing them for the overtime premiums they end up paying as their overtime law is slowly phased in over the next eight years.

Colorado's law gives small farms a higher threshold for paying overtime, with time-and-a-half kicking in above 56 hours a week, and gives all farms with highly seasonal work that same threshold for up to 22 weeks a year.

There is yet another idea that's frequently voiced by labor advocates but has yet to gain traction: People could pay more for their food.

"I would love that if that were true," Schreiber says. "We are not being offered that deal."