Q: I thought the ag overtime bill failed? Why am I hearing about it again?
A: On April 28, 2016, we posted a blog entitled “Lettuce Get Back to Work” discussing AB 2757 that would change the way agricultural workers are paid overtime. Currently, agricultural employees are paid overtime after 10 hours instead of 8 hours (which is the standard for most other industries). In addition, there is currently no daily double time after 12 hours for agricultural workers, which is also standard for other industries. The argument has always been that the seasonal nature of agriculture makes excluding it from other standard industry rules reasonable. Many individuals oppose the bill for economic reasons as well. Specifically, opponents argue that this new overtime requirement will drive agriculture out of the state and will lead to greater plantings of less labor-intensive crops, thus hurting the very people an increase in overtime was intended to help. On the flip side, proponents argue that what is fair for other industries is also fair for agriculture – particularly in light of the difficult nature of farm work. Nonetheless, on June 2, 2016 the arguments against changing the overtime requirements for agriculture workers failed, but by a very slim margin.
On August 22, 2016, AB 1066, a bill almost identical to AB 2757, passed in the senate, thus setting up another tight vote in the assembly. AB 1066 allows for the overtime requirements to be phased in over a period of four years, starting on January 1, 2019, meaning that the bill will be in full effect on January 1, 2022. Unlike its predecessor bill, AB 1066 further provides that employers who employ 25 or fewer employees have an additional three years to phase in the new overtime requirements – thereby not making them mandatory until 2025.
Agricultural employers should note, however, that if the bill is passed, they cannot simply opt out of these overtime requirements by using farm labor contractors. This is due to section 2810.3 of California’s Labor Code, which imposes liability on a business for a labor contractor’s failure to comply with Labor Code provisions addressing wages and hours (e.g. overtime).