POLITICS
06/25/2018 10:31 am ET

Democrats Propose Overtime Pay For Farmworkers To Rectify Racial Injustice

The omission of farmworkers from overtime law is a vestige of the Great Depression. A bill introduced by Sen. Kamala Harris would get rid of it.
Bill Clark via Getty Images

Democratic senators say it’s time to finally give U.S. farmworkers the full labor protections they’ve been excluded from since 1938.

Led by Sen. Kamala Harris of California, lawmakers plan to introduce a bill Monday that would extend overtime rights to all agricultural workers, and grant many of those same workers new minimum wage rights as well. The legislation would do so by amending the Fair Labor Standards Act, the bedrock law, passed 80 years ago Monday, that established a federal wage floor and time-and-a-half pay for extra work.

Farmworkers, as well as domestic help, were largely carved out of those seminal protections; the political coalition enacting the New Deal included Southern Democrats who wanted to keep farm labor ― most of it done by African-Americans ― as cheap as possible. Many of the original exclusions persist today and still disproportionately affect people of color, particularly Latino field workers.

In a statement, Harris noted that such workers toil for long shifts in the heat ― often 12 hours a day during harvest season ― and deserve the same safeguards as others.

“This bill will attempt to correct some of the injustices they face and guarantee they will get paid for the hours they work including overtime, and minimum wage which right now they are not entitled to by law,” she said. “This is a matter of basic fairness and justice.”

Harris’ office says the bill has backing from more than one hundred labor and civil rights groups. Co-sponsors of the bill include Democratic Sens. Dianne Feinstein (Calif.), Cory Booker (N.J.), Jeff Merkley (Ore.), Richard Blumenthal (Conn.), Mazie Hirono (Hawaii), Elizabeth Warren (Mass.) and Chris Van Hollen (Md.).

Although the bill would essentially level the playing field between agriculture and other lines of work, it’s likely to go nowhere while Republicans control both chambers of Congress and the White House.

The new overtime protections would force farmers to pay workers time and a half for every hour they work beyond 40 in a week ― the standard premium that applies to all hourly workers under the FLSA. Farmers are an extremely powerful interest group in Washington, and lawmakers from rural states, perhaps including some Democrats, would be reluctant to push a law that would raise their labor costs. Growers often argue that overtime pay isn’t appropriate for agriculture because the work is weather-dependent and fluctuates so much.

When the FLSA was passed, agricultural workers were entirely omitted from the minimum wage and overtime protections. They were also excluded from the National Labor Relations Act, the 1935 law that established the right to organize unions and bargain collectively in the private sector.

As labor lawyer Marc Linder explained in a 1987 legal paper still relevant today, excluding farmworkers from workplace protections had become common by the time the FLSA was enacted, and was largely due to compromises made with Southern lawmakers.

“Those congressmen negotiated with [President Franklin Delano] Roosevelt to obtain modifications of New Deal legislation that preserved the social and racial plantation system in the South ― a system resting on the subjugation of blacks and other minorities,” Linder wrote.

In 1966, Congress passed an amendment to the FLSA extending a minimum wage guarantee to many agricultural workers, although the massive overtime exemption remained in place. The new Democratic legislation would remove not only the overtime carveout but most of the remaining minimum wage exclusions as well, like those for certain small farms and youth workers.

The exemption for family farms, where the workers are directly related to the employer, would remain in place. Under the bill, the new regulations would be phased in between 2022 and 2025, to give farmers time to adjust.

If the bill were to one day pass, then the federal government would be following the lead of California. Two years ago, Gov. Jerry Brown (D) signed legislation establishing a 40-hour workweek for the state’s agricultural workers, thereby guaranteeing them time-and-a-half pay for hours worked beyond that. The state’s growers lobbied heavily against it, claiming it would force them to cut back on hours for their workers.

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