By STEVE BROWN

Capital Press

Reflecting the Obama administration's get-tough approach to labor issues, U.S. Secretary of Labor Hilda L. Solis has turned up the heat on violations of federal wage and hour laws.

"The administration's budget request for fiscal year 2011 includes $25 million for the Department of Labor as part of this initiative, including $12 million for increased enforcement of wage and overtime laws in cases where employees have been misclassified," Solis said in a statement posted on the department's website.

The misclassification she refers to is employees who are not paid overtime when federal law says they should be. The Fair Labor Standards Act exempts certain workers from overtime provisions, in particular agricultural workers.

"In general, we refer to exempt workers as salaried workers and non-exempt workers as hourly," Dan Fazio, director of employer services at the Washington State Farm Bureau, said. "That's not technically correct, but that's the classification we use."

Some non-exempt workers are exempted from overtime, he said. Both state and federal regulations address the issue:

* Washington law -- RCW (Revised Code of Washington) 49.46.130 -- exempts workers from overtime if they are employed on a farm in connection with raising or harvesting a crop; operating or maintaining the farm, its tools or equipment; or processing or delivering the crop to market.

* Federal law -- 29 CFR (Code of Federal Regulations) 780 -- is similar, but with a few key differences. "This is more stringent than state regulations," Fazio said. "You always have to comply with the law that's worse for you."

Federal law exempts practices "by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market."

That phrase "incident to or in conjunction with" is the kicker, Fazio said.

"As long as your operations are limited to something that you grew on your farm, all of the workers are overtime exempt, even an administrative assistant, receptionist or mechanic," he said. "But when you handle other people's crops, your operation is 'contaminated,' and any worker who has a part in that, including administrative assistants and mechanics, becomes overtime-eligible."

Federal law characterizes modern agriculture as horizontally integrated, that the farmer is concerned with only one aspect of food production.

It also breaks out two kinds of farming with regard to the overtime exemption:

* "Primary" farming "in all its branches" is exempt, regardless of who performs it.

* "Secondary" operations, performed on a vertically integrated farm, are exempt, provided they are performed on that farm's crops.

"If it is not primary or secondary agriculture, it is not overtime-exempt," Fazio said.

Non-farming operations that are performed by the farm's employees on the farm can generally gain the exemption if they are "incident to the farming operation," he said. For example, trimming trees near communication lines on the farm would be overtime-exempt.

Other exempt activities would include preparing the crop for market or delivering it to market. "But they're exempt only when performed by the farmer or the farmer's employees," Fazio said. "However, fresh fruits and vegetables have an additional exemption which makes the trip to processor or market exempt, regardless of who performs it."

Fazio led a webinar on the subject on Aug. 24.

In response to a question about harvesting another farmer's field, he said those workers would still be exempt because they are part of the horizontal integration, regardless of who does it.

Winery workers would also be exempt "until you bring in grapes from someone else's operation."

The federal law lists several special exemptions: employees of small farms (less than 500 man/days per year); immediate family members; hand-harvest, piece-rate workers who commute from home and work less than 13 weeks per year at one location; and range livestock workers.

Other subparts address nursery, forestry and fruit and vegetable transportation. Fazio invited employers with questions in those areas to call him.

Online

www.dol.gov/whd/overtime_pay.htm

Other states

* California: Dave Kranz, spokesman for the California Farm Bureau Federation, said farmworkers are entitled to 1 1/2 times their regular rate of pay for all hours worked in excess of 10 in a day and for all hours worked on the seventh consecutive day in a workweek. On July 28, Gov. Arnold Schwarzenegger vetoed a bill that would have made California the only state to require overtime pay for farmworkers after eight hours in a day or 40 hours in a week.

* Idaho: A pamphlet -- labor.idaho.gov/pdf/wagehour.pdf -- distributed by the Idaho Department of Labor echoes the federal Fair Labor Standards Act for exemptions on overtime pay.

* Oregon: According to the Oregon Bureau of Labor and Industries, employers are not required to pay overtime to employees performing work that meets the definition of "agriculture." Nursery activities -- including Christmas trees -- are considered agriculture. Not included in that definition are forest products and harvesting.

-- Steve Brown

Recommended for you