State Supreme Court strikes down overtime exemption for dairy workers

For the Basin Business Journal | December 10, 2020 1:00 AM

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 nearly all of the issues in the lawsuit were settled before reaching the state’s Supreme Court, the overtime issue remained unresolved.

Writing for the majority, Justice Barbara Madsen found that Article Two, Section 35 of the Washington state constitution — which requires the state legislature to pass laws protecting “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.

“This will mean fewer hours for workers and less pay,” said Bre Elsey, associate director of government relations for the Washington State Farm Bureau Federation, which filed briefs on behalf of the DeRuyter Brothers Dairy. “Farmers don’t have the ability to pay for unlimited hours.”

Justices in the majority found dairy work “is some of the most hazardous in the United States,” with injuries among dairy workers 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, Elsey said Washington state farmers and the organizations that represent them 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,” she said. “Look at other forms of agriculture that are year round, like cattle feeders.”

“The litigation costs alone can put a farm under,” she said.

Elsey said the ruling “could not have come at worse time” given that Washington dairy producers are facing much steeper cost increases that are making the state’s farmers much less competitive with those from neighboring states with lower costs.

Currently, many dairy workers make an average of $17 per hour, Elsey said, with many making more.

“They are not overworked or underpaid,” she added.

“If farms go under, workers won’t have jobs at the end of the day. The choice is less pay or no pay. Is that a win for them at the end of the day?” Elsey said. “If I was a worker, I would not want that.”

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

In a lengthy dissenting opinion, Chief Justice Debra Stevens said the issue of overtime is “a statutory benefit granted only at the discretion of the state legislature,” and not a constitutional right. That the state constitution grants the legislature the power to regulate dangerous working conditions or set conditions on wages and benefits “does not create the sort of personal or private right” to that regulation, Stevens wrote.

Elsey said the ruling does leave open the possibility for the state legislature to amend what it intends with the overtime exemption for farm workers, but she doesn’t believe there is the political will for the legislature to do that.

“Agriculture does not fail in isolation,” Elsey warned. “If ag goes down, everybody goes down with it. I hope the legislature takes that seriously.”

Charles H. Featherstone can be reached at