A top Oregon labor official recently outlined how farmers can compensate piece-rate workers under new paid sick time regulations, but the Oregon Farm Bureau still hopes to change the rules.
Last year, Oregon lawmakers passed a bill requiring employers with 10 or more workers to pay for 40 hours of sick leave per year, concerning farmers who pay based on harvested crop amounts and similar piece rates rather than per-hour wages.
The Oregon Farm Bureau criticized regulations enacted by Oregon’s Bureau of Labor and Industries for insufficiently explaining how employers should calculate the regular rate of compensation for piece rate workers who take sick time.
If a regular rate of pay can’t be established, employers can pay workers the minimum wage during paid leave.
Gerhard Taeubel, administrator of BOLI’S Wage and Hour Division, said farmers should calculate the regular rate of pay using the same method as employers who must pay overtime to piece-rate workers.
The total amount of money earned by an employee during the most recent week should be divided by the number of hours worked, Taeubel said at the recent Ag Summit conference in Salem, Ore., organized by the Dunn Carney law firm.
While it’s “helpful to know” how BOLI will interpret the piece-rate provision, the agency’s view may not be shared by workers who can file lawsuits against employers over alleged violations of the paid leave statute, said Jenny Dresler, state public policy director for the Oregon Farm Bureau.
BOLI’s explanation doesn’t account for some scenarios encountered by farmworkers who are expected to switch between tasks that pay different rates, Dresler said.
For example, a worker may be compensated at an hourly wage for pruning but then paid a piece rate for harvesting, she said.
During the upcoming legislative session, Oregon Farm Bureau will support Senate Bill 1581, which proposes to clarify and fix confusing provisions of the paid sick leave rules, Dresler said.
Under the bill, farmers would simply pay the minimum wage to piece rate workers on sick leave rather than have to calculate the regular rate of pay.
“Otherwise, you will have every group interpreting that a different way,” Dresler said.
BOLI has said it won’t take enforcement action against employers during the first year of the paid sick leave rules, and the bill would similarly stay private lawsuits over the law for a year.
The threshold for providing paid leave would also be increased from 10 to 25 employees and workers would have to wait 120 days, rather than 90, to use their sick leave. Farmers also wouldn’t be jointly liable for workers employed by labor contractors or have them counted toward the worker threshold.
When asked about the Farm Bureau’s continued concerns, Taeubel of BOLI said farmers will be expected to make a “reasonable effort” to calculate the regular rate of pay.
Taeubel acknowledged that farmers who opt to pay the minimum wage will do so at their own risk, as workers can complaint to BOLI or file a lawsuit alleging that a regular rate could be established.