State high court strikes exemption on some dairy overtime pay

OLYMPIA — The Washington State Supreme Court ruled last week that the state law exempting dairy workers from overtime pay violates the state’s constitution.

In a five-four decision issued on Nov. 5, the court found in favor of Jose Martinez-Cuevas and Patricia Aguilar, who in 2016 sued their employer, Outlook-based DeRuyter Brothers Dairy, over a number of issues, including failure to pay overtime.

While the other issues in the lawsuit were settled, the matter of overtime pay for the farm workers remained.

Writing for the majority, Justice Barbara Madsen found that Article 2, Section 35 of the Washington State Constitution – which requires the state legislature to pass laws “for the protection of persons working in mines, factories and other employments dangerous to life or deleterious to health” – guarantees dairy workers overtime pay, overriding the section of state law which exempts agricultural workers for overtime.

Dairy work “is some of the most hazardous in the United States,” the majority found, noting that injuries among dairy workers are 121% higher than other state industries and 19% above all other farm workers.

“DeRuyter asserts that lawmakers found the seasonal nature of farming and changes in weather, crop growth, commodity market prices, and husbandry rendered agricultural work ill suited to the 40-hour work week and overtime pay,” Madsen wrote.

“The record, however, does not support these assertions,” the justice added, noting that the constant milking of thousands of cows in shifts “24 hours a day, 7 days a week” makes dairy work more like factory work and less like seasonal farm work.

While the ruling is very narrowly focused on dairy workers, the majority found that “other industries employing seasonal workers, such as retail, are not exempt from overtime protections.”

Because of this, advocates for Washington state farmers are concerned the ruling will eventually have implications far beyond dairy producers.

“We assume there will be further lawsuits that will be bringing the rest of agriculture into this,” said Bee Elsey, the associate director of government relations with the Washington State Farm Bureau, which filed briefs on behalf of the DeRuyter Brothers Dairy.

Elsey said the ruling will mean fewer work hours for most dairy workers and therefore less pay. It also adds significant costs onto smaller producers, many of whom cannot raise their prices, and puts them at increased risk of going out of business.

“If I was a worker, I would not want that,” Elsey said.

Elsey said the ruling also opens dairy farmers to lawsuits on back overtime pay even though they followed the law, something noted by Justice Charles Johnson in his dissent.

“A farmer could be charged through no fault of their own,” she said. “A farmer could foot the bill for following the law, literally for following the law.”

“That’s a crime,” Elsey added.

Charles H. Featherstone can be reached at [email protected].