Ag Worker Rights
Most people don’t realize many agricultural workers are exempt from the federal, Fair Labor Standards Act (FLSA). The FLSA excludes many piece rate, hand harvest laborers, who commute to work, and have been employed in agriculture less than 13 weeks during the preceding year. Fortunately, California is more protective of our ag workers.
In California, hourly, piece rate, and all other workers regardless of whether the minimum standard would be met by averaging all hours worked in a work week paid at a higher contract rate must be paid minimum wage. Piece rate employees must be separately paid for “nonproductive time.” Nonproductive time is time spent under the employer’s control, exclusive of rest and recovery periods, that is not directly related to the activity being compensated on a piece rate basis, as well as rest and recovery periods. That means that if you are paid piece-rate, you must be paid for every hour worked, even if you’re not picking.
Below is a Schedule for California Minimum Wage rate 2017-2023.
Minimum Wage for Employers with 25 Employees or Less.
Minimum Wage for Employers with 26 Employees or More:
January 1, 2017$10.00/hour$10.50/hour
January 1, 2018$10.50/hour$11.00/hour
January 1, 2019$11.00/hour$12.00/hour
January 1, 2020$12.00/hour$13.00/hour
January 1, 2021$13.00/hour$14.00/hour
January 1, 2022$14.00/hour$15.00/hour
January 1, 2023$15.00/hour
This is the California minimum wage. Some cities and counties have enacted higher minimum wages.
Meal, Rest, and Recovery Periods
With limited exceptions, employers must provide non-exempt agricultural employees rest periods, meal periods, and recovery cool down periods to prevent heat illness. Employees must be provided 10-minute rest periods for every 4 hours of work, or major fraction thereof, to be taken in the middle of each 4-hour period. These 10-minute breaks must be paid.
An employee must ordinarily be provided a meal period of at least 30 minutes within the first 5 hours of an employee’s shift. However, if a shift is no more than 6 hours, the employer and the employee may agree to waive their meal period. An employer may not employ an employee for more than 10 hours in a day without providing the employee with a second meal period of at least 30 minutes. But, if the total hours worked is less than 12, the employer and employee may agree to waive the second meal period, provided they did not agree to waive the first meal period. These 30-minute meal periods do not need to be paid.
However, the employee is entitled to one additional hour of premium pay per meal or rest period missed unless the employee is relieved of all duties during these meal and rest periods.
Additionally, the Heat Illness Prevention regulations, adopted by the Occupational Safety and Health Standards Board (OSHA) require a “recovery period” for outdoor workers. Regulations encourage agricultural workers to take a cool down rest in the shade for at least 5 minutes at a time when they feel the need to do so to protect themselves from overheating. An employer that fails to provide a recovery period must pay the affected employee one additional hour of pay, at the employee’s regular rate, for each workday that the recovery period is not provided. Again, recovery periods count as hours worked, for which there can be no deduction from wages.
Historically, agricultural employees have had special overtime rules. Prior to December 31, 2018, agricultural employees have been entitled to overtime compensation at the rate of 1.5 times their regular rate of pay for all hours worked more than 10 (rather than 8) in a work day, more than 6 days in the work week, and during the first 8 hours, on the seventh consecutive day of work in any work week. Additionally, agricultural employees are entitled to double the employee’s regular rate of pay for work over 8 hours on the seventh consecutive day of work in any work week period however, employees devoting more than half of their working time any work week to perform the duties of an irrigator are exempt from overtime requirements. At least one Court distinguished between agricultural workers engaged in the process of harvesting fruit, and those drying the fruit next to the Orchard. Those drying the fruit were provided more generous overtime rates than the harvesters.
However, the legislature enacted the Phase-In Overtime for Agricultural Workers Act of 2016. The idea was to provide any person employed in an agricultural occupation the same opportunity to earn overtime compensation the same standards as millions of other Californians.
Starting January 1, 2019, any person employed in an agricultural occupation must receive 1.5 times the employee’s regular rate of pay for all hours worked over 9.5 in a workday, or 55 in any workweek. This applies to an employer who employs 25 or fewer employees starting January 1, 2022.
Starting January 1, 2020, any person employed in an agricultural occupation must receive 1.5 times that employee’s regular rate of pay for all hours worked over 9 in the day, or 50 in a week. This applies to an employer who employs 25 or fewer employees starting January 1, 2023.
Starting January 1, 2021, any person employed in an agricultural occupation must receive 1.5 times that employee’s regular rate of pay or all hours worked over 8.5 in a day, or 45 in week. This applies to employer who employs 25 or fewer employees starting January 1, 2024.
Starting January 1, 2022, any person employed in an agricultural occupation must receive 1.5 times that employee’s regular rate of pay for all hours worked over 8 in a day, or 40 in a week. For hours worked over 12 in a work day, the employee must receive at least 2 times that employee’s regular rate of pay. These requirements apply to any employer who employs 25 or fewer employees starting January 1, 2025.
Alternative Workweek Schedule
Agricultural employees may not be subject to an alternative work week.
Time of Payment
Wages for work performed between the first and 15th of the month must be paid between the 16th and 22nd of the month and wages for work performed between the 16th and the end of the month must be paid by the seventh day of the following month. Employees of a farm labor contractor must be paid every week on the designated payday, including all wages earned up to the fourth day before the payday.
Payment of Wages on Termination of Employment
The wages earned by an employee, but unpaid when the employer discharges the employee, are due and payable immediately. This includes the pay for vacation time that is earned but not used by the employee. Wages earned also include compensation for missed meal and rest periods. Employees who voluntarily quit generally must be paid on their last day of work. However, an employee who does not give at least 72 hours’ notice, must be paid within 72 hours after his or her last day of work.
An employer who lays off seasonal employees engaged in the curing, canning, or drying of perishable fruit, fish, or vegetables, will be deemed to have made immediate payment if the employees are paid within a reasonable time, not exceeding 72 hours, that allows for the wages to be calculated and paid. Payment must be made by mail to any employee he requests it and provides a mailing address.
So, if an employee is not provided all their pay at the time of their discharge, or quitting, they are entitled to a civil “waiting time penalty” of up to 30 days of pay for the employer’s willful failure to pay wages due to a discharged or quitting employee.
John grew up in a small farming community on the Central Coast. He started his career working as an employment defense attorney, representing large agricultural employers. So, he knows how the other side thinks. If you work in ag, and you’re concerned about your rights, you should contact an experienced employment attorney.
Experience Counts and the experienced and hard working team at McCarthy Law will put their experience to work for you!
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