Agricultural Overtime

The 2021 legislative session included passage of ESSB 5172, a bill expanding the state Minimum Wage Act’s overtime protections to all agricultural workers, including agricultural piece-rate workers. Signed by Gov. Jay Inslee, this new law went into effect on July 25, 2021. While dairy workers are entitled to receive overtime pay for all hours worked over 40 in a workweek, the law establishes a gradual phase-in period for full overtime eligibility for all other agricultural workers. The phase-in for non-dairy agricultural workers begins Jan. 1, 2022. During the phase-in period, 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.
You can learn more about changes in the law at L&I’s agricultural overtime web page.

Agricultural workers must earn at least the Washington State minimum wage for all hours worked. While agricultural workers are often paid a piece rate, they still must earn at least the state’s minimum wage for every hour worked. Please note: an employer seeking to employ foreign workers under the H-2A program is required to offer, advertise in its recruitment, and pay a wage that is at least equal to the Adverse Effect Wage Rate when it is the highest applicable wage rate among the wage sources applicable to the employer’s job opportunity. The Adverse Effect Wage Rate in Washington is $16.34, effective Feb. 23, 2021.

Minimum wage rates for 2021:

  • $13.69 per hour for ages 16 and older.
  • $11.64 for minors under age 16 (85% of the minimum wage).

Hand-harvest laborers as described in RCW 49.46.010(3)(a) are exempt from minimum wage laws.

Piece Rate Wages

Some agricultural workers are paid on a piece-rate basis. Piece rate wages are based on a worker’s productivity. Regardless of a worker’s productivity, they must earn at least minimum wage for all hours worked and rest breaks. Employers must pay workers an agreed wage or minimum wage, whichever is greater.

Regular Rate of Pay

To calculate a worker’s regular rate of pay, divide the total compensation (including non-discretionary bonuses) earned in a workweek by the total hours worked, not including rest breaks. This regular rate of pay cannot be less than minimum wage. If the calculated regular rate of pay is less than minimum wage, the employer must make up the difference so the worker is paid at least minimum wage.

Bonuses

Non-discretionary bonuses are bonuses that are guaranteed to workers for meeting certain production rates. These bonuses can be paid based on a defined time period or at the end of the entire harvest season. These bonuses must be included when calculating a piece-rate worker’s regular rate of pay. When workers receive a non-discretionary bonus, their rest break pay must be retroactively recalculated and the difference paid to the worker.

Discretionary bonuses are given at the discretion of the employer and are not guaranteed to workers. They are not promised or expected. These bonuses are not included when calculating a worker’s regular rate of pay.

Recordkeeping

It is the employer’s responsibility to keep track of:

  • All rates of pay.
    • This includes hourly, piece rate active time, piece rate down time, bonuses, etc.
  • Piece rate units produced.
  • Rest breaks.
  • The amount of time spent performing these duties.

For full details on recordkeeping, see the agricultural recordkeeping page and our administrative policy ES.D.2 – Recordkeeping and access to payroll records (agricultural employment).

Overtime

Recent changes to the state Minimum Wage Act provide new overtime rights to agricultural workers. The 2021 Legislature passed ESSB 5172, a bill expanding overtime protections to all agricultural employees, including agricultural piece-rate employees, with a phase-in schedule that will last three years. Dairy workers are entitled to receive overtime effective immediately.

Agricultural employees have historically been exempt from receiving overtime pay under the State Minimum Wage Act.

Overtime eligibility

Dairy employees are entitled to receive overtime pay after working 40 hours per week.

Agricultural employees will be entitled to receive overtime pay starting Jan. 1, 2022 based on the phase-in schedule.

Agricultural overtime phase-in schedule

Each year, the phase-in schedule gradually reduces the number of hours employees need to work in a workweek to receive overtime pay.

  • Beginning Jan. 1, 2022: 55 hours.
  • Beginning Jan. 1, 2023: 48 hours.
  • Beginning Jan. 1, 2024: 40 hours.

Wage Complaints

If you feel your workplace rights have been violated, including any unpaid overtime, you can file a worker rights complaint (Spanish version of the form) with L&I. The department will investigate all received complaints. 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.

For more information, workers can call the Employment Standards Program toll-free at 1-866-219-7321. If needed, interpretation services are available.

See RCW 49.46.130 for complete details.