BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                    AB 2757


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          Date of Hearing:   April 6, 2016


                     ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT


                               Roger HernŠndez, Chair


          AB 2757  
          (Gonzalez) - As Amended March 30, 2016


          SUBJECT:  Agricultural Workers:  wages, hours, and working  
          conditions


          SUMMARY:  Enacts the Phase-In Overtime for Agricultural Workers  
          Act of 2016, as specified.  Specifically, this bill:


          1)Provides that, beginning July 1, 2017, any person employed in  
            an agricultural occupation shall not be employed more than  
            nine and one-half hours in any one workday or work in excess  
            of 55 hours in any one workweek, unless the employee receives  
            one and one-half times that employee's regular rate of pay for  
            all hours worked over nine and one-half hours in any workday  
            or over 55 hours in any workweek.


          2)Provides that, beginning January 1, 2018, any person employed  
            in an agricultural occupation shall not be employed more than  
            nine hours in any one workday or work in excess of 50 hours in  
            any one workweek, unless the employee receives one and  
            one-half times that employee's regular rate of pay for all  
            hours worked over nine hours in any workday or over 50 hours  
            in any workweek.










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          3)Provides that, beginning January 1, 2019, any person employed  
            in an agricultural occupation shall not be employed more than  
            eight and one-half hours in any one workday or work in excess  
            of 45 hours in any one workweek, unless the employee receives  
            one and one-half times that employee's regular rate of pay for  
            all hours worked over eight and one-half hours in any workday  
            or over 45 hours in any workweek.



          4)Provides that, beginning January 1, 2020, any person employed  
            in an agricultural occupation shall not be employed more than  
            eight hours in any one workday or work in excess of 40 hours  
            in any one workweek, unless the employee receives one and  
            one-half times that employee's regular rate of pay for all  
            hours worked over eight hours in any workday or over 40 hours  
            in any workweek.



          5)Provides that the term "employed in an agricultural  
            occupation" has the same meaning as in a specified Wage Order  
            of the Industrial Welfare Commission.



          6)Provides that, beginning January 1, 2020, any work performed  
            by a person employed in an agricultural occupation in excess  
            of 12 hours in one day shall be compensated at the rate of no  
            less than twice the employee's regular rate of pay.



          7)Provides that all other provisions of existing law regarding  
            compensation for overtime work shall apply to workers in an  
            agricultural occupation beginning January 1, 2017.








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          8)Requires the Department of Industrial Relations to update  
            Industrial Welfare Commission Wage Order 14 to be consistent  
            with this bill.



          9)Makes related legislative findings and declarations.


          FISCAL EFFECT:  Unknown


          COMMENTS:  In 1938, Congress passed the Fair Labor Standards Act  
          (FLSA), which established minimum requirements with respect to  
          specified labor standards, including minimum wage and overtime.   
          The overtime provisions of the FLSA were not extended to  
          agricultural employees.


          However, as with all provisions of the FLSA, states are allowed  
          to exceed the requirements laid out in the federal law.  The  
          issue of overtime for agricultural employees in California was  
          first dealt with in 1941.  Previously, the law had been silent  
          on this subject.  But in 1941 the Legislature exempted all  
          agricultural employees from the statutory requirements of  
          overtime, similar to the FLSA.  This statutory exemption was  
          retained when the eight-hour day was codified in 1999.  


          This statutory exemption, however, did not prohibit the  
          Industrial Welfare Commission (IWC) from legally promulgating  
          overtime provisions beyond the traditional eight-hour standard  
          of California law.  Currently, the applicable wage order for  
          agricultural employees requires the payment of overtime wages  
          when an agricultural employee works longer than 10 hours in a  
          single day, and more than six days during any workweek.








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          With respect to meal periods, the applicable wage order provides  
          that every employer shall "authorize and permit" agricultural  
          employees to take a meal period after five hours of work.  This  
          language differs from the statutory meal period language  
          applicable to other employees that prohibits an employer from  
          employing a worker longer than five hours without "providing" a  
          meal period.  In addition, the wage order does not require a  
          second meal period after the tenth hour of work (as the statute  
          requires for other employees).


          ARGUMENTS IN SUPPORT:





          This bill is sponsored by the United Farm Workers (UFW), who  
          argues that farm workers engage in back-breaking work every day.  
           Few occupations in today's America are as physically demanding  
          and exhausting as farm work.  Yet no job in America requiring  
          such demand on the human body pays less for a long day's work  
          than what this bill is asking for farm workers.





          UFW states that is has been 77 years since farm workers were  
          excluded from the wage protections and maximum hour standards  
          through the enactment of the FLSA.  Excluding farm workers is  
          part of our country's shameful legacy that initially targeted  
          African-American who were farm workers in the 1930s.  They argue  
          that excluding farm workers from overtime was wrong in 1938, and  
          is wrong today.










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          UFW argues that this bill rights a wrong that can no longer be  
          justified or tolerated in a society where equal rights and equal  
          justice are supposed to be more than academic theories or  
          political rhetoric.





          Similarly, the Mexican American Legal Defense and Educational  
          Fund MALDEF argues that, even though California's farms workers  
          perform some of the most physically-demanding jobs with pay and  
          working conditions at levels that most Americans would not  
          tolerate, they continue to be excluded from overtime laws  
          enjoyed by most American workers.  The enactment of the Fair  
          Labor Standards Act of 1938 has excluded farm workers from wage  
          protections and maximum hour standards for the last 78 years.  
          This can no longer be justified or tolerated. 


          This bill is a commonsense solution that will make farm workers  
          eligible for overtime pay like every other worker.





          ARGUMENTS IN OPPOSITION:





          A coalition of agricultural employers and others opposes this  
          bill, arguing that, because farmers, their employees and their  
          operations are critically affected by the uncontrollable whims  








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          of nature and the seasonality of agricultural production,  
          agriculture needs greater flexibility in scheduling work than do  
          other industries.





          They contend that state and federal laws recognize this reality.  
           There remains widespread agreement that wage laws in other  
          industries and businesses cannot be equated with those in  
          farming due to farming's unpredictability, seasonality of work,  
          and the dynamics of the weather and compressed harvest season.   
          Federal law completely exempts persons employed in agriculture  
          from overtime pay, but California long ago established an  
          overtime pay requirement for agricultural employees.  


          Opponents note that California is one of only a few states that  
          require premium pay for overtime worked by farm workers.  
          California's regulation is one of the most generous in its  
          coverage and requires agricultural workers receive overtime pay  
          for hours worked over 10 in a workday.   They state that  
          California farmers value and respect their workers.  In fact,  
          many farmers voluntarily provide health benefits, vacation pay,  
          and 401 (k) retirement plans for their employees.





          Opponents believe this bill will backfire, hurting family  
          farmers and cutting agricultural workers' paychecks.   
          California's family farmers cannot successfully compete with  
          other states and nations if they are forced to increase their  
          production costs.  Profit margins in agriculture are thin -  
          farmers cannot remain successful if they must absorb these  
          additional costs.  They contend that the cost of farming has  
          risen by 36 percent over the past few years; inputs like seeds,  








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          fertilizer and electricity have all become significantly more  
          expensive.  Consequently, farmers will likely avoid the  
          additional costs imposed by this bill by limiting worker hours  
          and hiring more farm workers to make up the difference whenever  
          possible.


          


          PRIOR RELATED LEGISLATION





          AB 1313 (Allen) of 2012 proposed to extend the 8-hour daily  
          overtime rule to agricultural employees.  However, AB 1313  
          failed passage on concurrence on the Assembly Floor.





          AB 1313 was similar to SB 1121 (Florez) from 2010, which was  
          vetoed by Governor Schwarzenegger.  The Governor's veto message  
          stated (in part): 


            "Unfortunately, this measure, while well-intended, will not  
            improve the lives of California's agricultural workers and  
            instead will result in additional burdens on California  
            businesses, increased unemployment, and lower wages.  In order  
            to remain competitive against other states that do not have  
            such wage requirements, businesses will simply avoid paying  
            overtime.  Instead of working 10-hour days, multiple crews  
            will be hired to work shorter shifts, resulting in lower take  
            home pay for all workers.  Businesses trying to compete under  
            the new wage rules may become unprofitable and go out of  








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            business, resulting in further damage to our already fragile  
            economy."


          


          REGISTERED SUPPORT / OPPOSITION:




          Support


          American Federation of State, County, and Municipal Employees


          Asian Americans Advancing Justice -CA 
          CA Conference Board of Amalgamated Transit Union


          CA Conference of Machinists


          CA League of United Latin American Citizens


          CA State Conference for NAACP


          CA State Conference of the NAACP


          California Employment Lawyers Association


          California Federation of Teachers









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          California Immigration Policy Center
          California Labor Federation


          California Rural Legal Assistance Foundation


          California Teamsters Public Affairs Council


          Center on Policy Initiatives
          Coalition for Humane Immigrant Rights of Los Angeles


          Consumer Attorneys of California


          Courage Campaign


          Dolores Huerta Foundation
          Engineers & Scientists of CA, IFPTE Local 


          Farmworker Justice


          Hilary Rodham Clinton


          Honorable Norma J. Torres, Member of Congress


          Human Rights Watch


          International Brotherhood of Teamsters









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          International Longshore and Warehouse Union


          La Cooperativa Campesina de California


          Los Angeles Alliance for a New Economy 
          Los Angeles Mayor, Eric Garcetti
          Mexican American Legal Defense and Educational Fund


          National Association of Social Workers - California Chapter


          Professional and Technical Engineers, IFPTE Local 21


          Sacramento Central Labor Council


          SAG-AFTRA


          Service Employees International Union California


          UNITE HERE


          UNITE HERE Local 30
          United Farm Workers


          United Food and Commercial Workers


          Utility Worker Union of America, Local 132









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          Western Center on Law & Poverty  




          Opposition


          Agricultural Council of California


          Almond Hullers & Processors Association


          California Agricultural Aircraft Association


          California Association of Nurseries & Garden Centers


          California Association of Winegrape Growers


          California Association Wheat Growers


          California Blueberry Association


          California Cattlemen's Association


          California Chamber of Commerce


          California Citrus Mutual










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          California Cotton Ginners Association


          California Cotton Growers Association


          California Dairies, Inc.


          California Farm Bureau Federation


          California Fresh Fruit Association


          California Pear Growers Association


          California Seed Association


          California Tomato Growers Association


          Family Winemakers of California


          Far West Equipment Dealers Association


          Nisei Farmers League


          Western Agricultural Processors Association


          Western Growers Association










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          Western Plant Health Association


          Western United Dairymen


          Wine Institute




          Analysis Prepared by:Ben Ebbink / L. & E. / (916) 319-2091