Many farmers in Oregon will have to provide employees with paid sick leave beginning on Jan. 1, but farm advocates say the new rules are too vague.
Farmers face uncertainty in determining how much to pay piece-rate workers, such as fruit pickers, who are compensated based on the amount they harvest, according to the Oregon Farm Bureau.
“We didn’t get the clarity we needed,” said Jenny Dresler, director of state public policy for OFB.
Oregon lawmakers passed a bill earlier this year requiring employers with 10 or more workers to provide paid sick leave and the state’s Bureau of Labor and Industries recently completed regulations implementing the statute.
The rules say that piece-rate workers on leave must be compensated at the “regular rate of pay” previously established with the employer, or the minimum wage if no such rate was set.
The problem is that the regulations don’t specify how this “regular rate of pay” must be calculated, Dresler said.
For example, is it based on the weekly average of the employee’s piece-rate earnings before going on leave? Or the piece-rate earned by other workers who are harvesting crops while the employee is sick?
“We needed a clarification and we didn’t get it,” Dresler said. “We just don’t know.”
Each member of a rules advisory committee that helped BOLI interpret the statute had a different opinion of how the “regular rate of pay” should be set, she said.
It’s also ambiguous when such a rate has not been established, allowing farmers to pay workers the minimum wage when on leave, Dresler said.
While BOLI has said it will postpone penalizing employers as it educates them about the new rules, that won’t stop individual workers from filing lawsuits against their employers as permitted by the statute, she said.
Tim Bernasek, an attorney specializing in agricultural and labor issues, said he doesn’t “have a very good answer about how to practically implement this rule” but expects BOLI will help teach farmers how to achieve compliance.
Hopefully, legal aid organizations who have attorneys devoted to farmworker protection will also act reasonably as the rules come into effect, Bernasek said.
At this point, the best advice to growers is simply to try following the rules in good faith, Bernasek said. “I would encourage ag employers to roll up their sleeves and make their best effort to make this work.”
Charlie Burr, a spokesman for BOLI, said the agency will offer a series of low-cost seminars about paid sick leave in 2016 in which compliance experts will answer questions about the rules. Employers can also call BOLI’s hotline — 971-673-0824 — for answers.
However, the agency doesn’t plan any additional rulemaking on the subject, Burr said.
Aside from the confusion over piece-rate workers, Oregon Farm Bureau is disappointed that BOLI considers farmers and labor contractors “joint employers” under the law.
That means farmers and contractors will need to independently track the accumulation of workers’ sick leave hours, which OFB believes is redundant and complicated, since pickers often travel from farm to farm.
Also, the contractors’ workers will count toward a farmers’ employee count, so many growers who normally have fewer than 10 workers would have to comply with the paid sick leave regulations.
BOLI spokesman Burr said the joint liability provisions are guided by federal labor law.
The Oregon Farm Bureau hopes to ask lawmakers to fix the provisions during the 2016 legislative session, Dresler said. “We think the legislative intent did not come across in the rules.”
Despite these problems, OFB did get the agency to clarify two points about which it had concerns.
Employers who work with perishable crops will fall under “undue hardship” provisions under which workers must take sick leave in four-hour increments.
Without this provision, workers could take leave in one-hour increments, which would often hinder farmers in finding timely replacements.
Also, co-owner spouses are not considered employees under the rule, excluding them from the 10-employee threshold that mandates compliance with paid sick leave rules.