Lettuce Get Back to Work

Q:     I run a custom farming operation where we often need our employees to work over 8 hours in a day during our busy seasons. Most of our employee’s understand that the short window of harvest means a relatively short season of long hours. However, I heard that a bill was introduced in Sacramento with a strong likelihood of passing which would impose much stricter overtime requirements for farm workers.  Tell me it is not sow![1]

A:     You heard correctly. On April 6, the Assembly Labor & Employment Committee passed AB 2757 which seeks to “phase-in” overtime requirements for agricultural workers over the next four years, beginning in 2017. The impacts of this bill are feared to increase labor costs associated with farming and the agricultural industry. First, AB 2757 would require agricultural employers to pay overtime premium pay (at a rate of 1.5 times an employee’s regular rate of pay) to their employees after 8 hours in any work day, and 40 hours in any work week.[2]  Currently, the operative wage order for farm workers only requires daily overtime if the employees works more than 10 hours.  Second, it would require premium pay at the rate of two times the employee’s regular rate of pay for any work after 12 hours in a day. Currently, there is no double time for farm workers.  Furthermore, AB 2757 will repeal the agricultural exemption from the “one days’ rest in seven” requirement in the Labor Code, requiring agricultural employers to provide employees at least one day off each work week even during peak season.

Proponents characterized AB 2757 as “clean-up” legislation righting decades of unfair exclusion of farm workers from the right to 8-hour work days and 40-hour work weeks.[3] The Farm Bureau and a broad coalition of employer groups opposed the bill, arguing that the legislation will actually reduce farm workers’ income as affected employers will elect to have employees work 8 hours per day and avoid overtime premium pay, rather than the current practice of paying workers at their regular rate of pay for as many as 10 hours a day for as many as 6 days a week during busy harvest periods when enough work is available to work those hours.[4]

The farming interests argue the current law was meant to account for the variable nature and seasonality of farming.

AB 2757 passed the committee by a 5-2 party-line vote and was referred to the Assembly Appropriations Committee. Here, at Baker Manock & Jensen we will continue to track the bill as well as others that affect Valley businesses.

[1] http://www.dictionary.com/browse/sow

[2] http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520160AB2757

[3] http://www.leginfo.ca.gov/pub/15-16/bill/asm/ab_04510500/ab_486_cfa_20150411_153203_asm_comm.html

[4] http://www.farmbureauvc.com/new/assets/pdf-forms/friday-review/friday-review-4-8-2016.pdf

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

 

I am woman, hear me score.

Q:    I read in the paper this morning that the U.S. Women’s National Soccer Team has filed a claim with the EEOC against the U.S. Soccer Federation, demanding equal pay. If male sports teams are the ones bringing in all the revenue, can female athletes really support the argument that they deserve the same pay?

A:     It seems very possible. First, it has been reported that the women’s soccer team has actually generated more money than the men’s team, exceeding the men’s revenue by $20 million in 2015.[1] Second, the Equal Employment Opportunity Commission (“EEOC”) is a federal agency that has been progressive in addressing workplace discrimination. The EEOC’s latest interpretations of the Fair Labor Standards Act (“FLSA”) and the Equal Pay Act (“EPA”), indicate a likely victory for the women’s team.

Under the EPA and FLSA, male and female employees must be paid equal wages for substantially equal jobs. Specifically, when a job performed under similar working conditions requires equal skill, effort and responsibility, an employer cannot discriminate between employees on the basis of sex by paying unequal wages.[2]  Similar, but even stricter, rules apply under California’s new Fair Pay Act (“FPA”), where the requirement applies even when the employees work at different sites or have different titles.[3]

The EPA permits wage differentiation where the pay is measured by quality or quantity of production, or under a seniority and merit system, provided sex plays no part in the wage differential.[4] However, as the women’s team brings in more revenue, and has had far more victories than the men’s team, the U.S. Soccer Federation would be hard-pressed to argue that a wage differential based on the difference in “quality” or “skill” between the two teams had nothing to do with sex. As such, it seems unlikely that the EEOC would accept a merit system defense. It appears that the U.S. Soccer Federation anticipates as much, based on a statement it released on March 31, stating that its “efforts to be advocates for women’s soccer are unwavering,” and it is committed to negotiating a new collective bargaining agreement for the women’s team at the end of 2016.

Accordingly, the U.S. Women’s National Team’s recent success may have won them not only a shiny World Cup, but higher paycheck, too.

[1] http://www.cnn.com/2016/04/01/football/uswnt-lawsuit-pay-parity/index.html?eref=rss_latest

[2] (29 U.S.C. § 206(d)(1).)

[3] (Cal. Lab. Code § 1197.5.)

[4] See footnote 2.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.