BILL ANALYSIS Ó
AB 2757
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Date of Hearing: April 6, 2016
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, 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