Agricultural Overtime FAQs

    When does the law take effect?

    The law took effect on July 25, 2021, 90 days after the end of the Legislative session, but some portions of the law applying to agricultural workers will be phased in from Jan. 1, 2022 through Jan. 1, 2024. Dairy workers are eligible for overtime compensation for all hours worked over 40 in a workweek. All other agricultural workers will be eligible for overtime compensation for hours worked over 55 during a workweek beginning Jan. 1, 2022, for all hours worked over 48 beginning Jan. 1, 2023, and for all hours worked over 40 beginning Jan. 1, 2024.

    Does this new law prohibit agricultural employees from working over 40 hours per workweek?

    No. This law relates to the compensation of workers who work overtime rather than prohibiting workers from working overtime in the first place. This law will require dairy workers to be paid the overtime rate for hours worked above 40 immediately, and all other agricultural workers for hours worked above 55 in 2022, 48 in 2023, and 40 starting in 2024, according to the phase-in schedule.

    Can employers limit an employee’s hours to 40 per workweek to avoid paying overtime?

    Yes. Employers can choose the number of hours employees are scheduled to work and are not required to offer overtime hours.

    If an employer does not authorize an employee to work overtime but they do it anyway, does the employer need to pay them the overtime?

    Yes. If the work is performed, it must be paid.

    If an agricultural worker works on multiple farms and their total weekly hours are above the overtime threshold, are they entitled to overtime?

    Maybe. If a worker works above the overtime threshold at any one farm, the employee would be entitled to overtime pay for the overtime hours worked at that farm. If the employee works at multiple farms with the same or joint ownership, and their total hours are above the overtime threshold, the employee would also be entitled to overtime pay for all overtime hours worked, regardless of which of the farms the overtime work was performed on. On the other hand, if the employee works on multiple farms with separate ownership and no joint business connections, and their hours do not exceed the overtime threshold at any one farm, they would not be entitled to overtime and each employer would be responsible for paying the employee straight time for all hours worked on their farm. For example, if an employee worked 40 hours at Farm A and another 20 hours at Farm B and there was no same ownership or joint business connection, and the hours worked at each farm did not exceed the threshold, the worker would not be eligible for overtime even though the worker worked a total of 60 hours for unrelated farms. Employers should be careful to understand joint employment obligations.

    Does the new law cover retroactive overtime pay for dairy and agricultural workers for hours worked prior to the law going into effect?

    The law specifies that agricultural are not entitled to retroactive overtime payment. Dairy workers cannot file claims for overtime hours worked prior to Nov. 5, 2020. However, dairy workers can file a complaint if they feel they earned overtime pay after Nov. 5, 2020, but did not receive it.

    How much should workers be paid if they have earned overtime?

    Overtime pay must be at least 1.5 times the employee’s regular rate of pay. Employees cannot waive their right to overtime pay.

    How does the Supreme Court decision regarding agricultural overtime eligibility affect this new law?

    The Martinez-Cuevas vs. DeRuyter Brothers Dairy Supreme Court decision made dairy workers eligible for overtime pay when the ruling was made Nov. 5, 2020. The passage of ESSB 5172 by the State Legislature, followed by the Governor’s approval, extends the right to overtime to all other agricultural workers in the state beginning Jan. 1, 2022, with the gradual phase-in schedule for three years.

    Can I classify my workers as exempt if they are paid a salary?

    Maybe. To be classified as exempt from overtime and other state Minimum Wage Act protections as an executive, administrative or professional employee, they must meet certain requirements: they must perform specific job duties, be paid on a salary basis, and the salary they earn must meet the threshold as required by recent changes to the state’s overtime rules. In 2022, the threshold is estimated to be $50,700 a year for all businesses. The salary threshold, a multiplier of the state minimum wage, will increase until it is 2.5 times the minimum wage by 2028.

    Who is considered an agricultural employee?

    Under the law, “agricultural employee” means any individual employed:
    (a) On a farm, in the employ of any person, in connection with the cultivation of the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and furbearing animals and wildlife, or in the employ of the owner or tenant or other operator of a farm in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment;
    (b) In packing, packaging, grading, storing or delivering to storage, or to market or to a carrier for transportation to market, any agricultural or horticultural commodity; or
    (c) Commercial canning, commercial freezing, or any other commercial processing, or with respect to services performed in connection with the cultivation, raising, harvesting, and processing of oysters or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption. An agricultural employee does not include a dairy employee.

    Who is considered a dairy employee?

    Under the law, “dairy employee” includes any employee engaged in dairy cattle and milk production activities described in code 112120 of the North American industry classification system.