Washington State Dairy Workers Challenge Their Exemption From Overtime Pay

Patricia Aquilar, 21, began working at DeRuyter Brothers Dairy in central Washington nearly three years ago. She worked at the dairy's milking parlor, which she says handles about 3000 cows three times each day, seven days a week. Aquilar was one of four dairy workers responsible for pushing and guiding the cows into the parlor, connecting the animals to milking machines, wiping them and the machinery down, and cleaning towels and milk tanks.

"I worked six days a week for eight or nine hours," she explains. "They said we would get breaks but we didn't have even a full lunch break, just 15 or 25 minutes," says Aquilar.

Her colleague, Jose Martinez, 60, also worked at a milking parlor at DeRuyter Brothers. He worked there for more than a year, with his time at the dairy overlapping with Aguilar's. "It was six days a week. It was supposed to be an eight hour shift but was always more," he says. "It could be an hour or three hours more. If a machine broke it could be significantly longer," he explains.

With its close encounters with large animals and machinery, dairy work is hard and dangerous. Injuries – including fatal injuries – are not uncommon. Aguilar describes being kicked in the hand and chest by cows. One time, says Martinez, "a cow stepped on my hand and I had to literally pull my hand out from under the hoof."

Both were paid about $12 per hour. Both say they weren't paid as they should have been for their brief break times and there was no overtime pay – a norm in this industry that runs 24/7. That's because U.S. federal law excludes people who work in agriculture – on farms and in dairies – from the right to overtime pay. It also excludes them from the right to organize or unionize, and under certain circumstances, the right to be paid the minimum wage.

Now, Aquilar and Martinez are challenging this labor law exemption in Washington by filing a class-action lawsuiton behalf of all agricultural workers in the state.

The suit – the first of its kind in Washington – against DeRuyter Brothers Dairy is being filed on behalf of the dairy workers by Columbia Legal Services in Yakima County Superior Court. The suit claims that the lack of overtime pay violates state wage law, which requires overtime pay for more than 40 hours worked per seven-day week, and also violates the state constitution's protections against discrimination and favoritism, explains Lori Isley, an attorney with Columbia Legal Services. The suit also seeks to recover payment for the dairy's failure to provide required meal and rest breaks, and failure to pay workers for that time.

"It's not fair that people who work at a dairy don't get paid overtime," says Aquilar. "Everybody else gets paid overtime. We should be treated equally as everybody else."

"Part of the problem is also the management," said Martinez. It's "constantly pushing people to work faster and longer."

DeRuyter Brothers Dairy declined to comment on the lawsuit. But other dairy owners and industry representatives say a 40-hour week structure is problematic in light ofindustry's unique round-the-clock requirements. Paying overtime, they also say, adds costs that can't be recouped easily, given other business expenses and what they're currently paid for milk, and could result in reduced staffing or workers' hours.

Aquilar and Martinez's law suit comes at a time when agricultural workers around the country are challenging these exemptions, which date back to the 1930s. At the same time, state laws are slowly beginning to change.

Farmworkers in New York have filed a lawsuit challenging their exemption from the right to unionize. In New Mexico, farmworkers, led by dairy workers, have successfully challenged their exemption from workers' compensation. In Washington, over the past several decades, farmworkers have secured the right to workers' compensation, the right to organize and to paid rest breaks.

"The exclusion for farm work is rooted in racially discriminatory labor laws that were passed in the 1930s," says Bruce Goldstein, the executive director of Farmworker Justice, a nonprofit organization that supports migrant and seasonal farmworkers. The farmworker exemptions to the U.S. Fair Labor Standards Act date back to the New Deal and concessions made for Southern farmers, whose workforce was then largely African-American. "It's long past time to end these exclusions," says Goldstein.

"We're dragging the industry into modern times," says Jeff Johnson, president of Washington State Labor Council, whose organization has been representing farmworkers on these issues for 30 years.

But only four states require overtime pay for farmworkers: California (which passed legislation earlier this year to pay overtime after 40 hours), Hawaii, Maryland (where overtime starts after 60 hours) and Minnesota (where overtime begins after 48 hours).

But farm and dairy owners generally aren't happy about these overtime requirements. They're used to longer work weeks, and they say the added costs are burdensome, since they can't be passed on to their customers, given milk pricing structures. California growers "are having to make really difficult decisions to deal with this increase," says Matthew Allen, director of California governmental affairs for the Western Growers Association. These may involve cutting hours or staff, or even reducing farm acreage to remain competitive, he explains. "We're not operating in a vacuum," says Allen. "It's a global marketplace."

"The costs of dairy production in California are not competitive any longer," says California dairy owner Joaquin Contente. "We have one of the lowest milk prices in the country." Added labor costs have shrunk profit margins, he says.

Lucas Sjostrom of the Minnesota Dairy Producers Association says his state's dairy farmers are feeling similar pressures. The push to make agricultural work conform to a 40-hour work week, he says, is problematic. "A full-time employee might have 60 to 70 hours of work one week, and 30 the next," depending on variations of weather and other aspects of the 24-hour operation, says Sjostrom. "The restrictions of 40 hours just don't work well."

Anja Radaubagh, CEO of Western United Dairymen, an organization representing dairies in California (the biggest milk-producing state), agrees. The burden, she says, will be felt most acutely by smaller dairies.

But the number of smaller dairies has been shrinking over the past couple of decades, says Goldstein. Dairies have consolidated and grown in size so that more than 50 percent of U.S. milk is now produced by about 3 percent of the country's dairies. In 1992, most U.S. dairy farms had about 49 milk cows per farm. Now, most have well over 500, and dairies with 2,000 or more cows have been growing in number the fastest. Dairies with upwards of 5,000 cows are not uncommon.

Farmworker advocates also point to the increasing size of dairies as a reason to treat their workers like those in other industrialized workplaces. "We're not talking mom-and-pop dairies, we're talking industry," says Johnson.

In Washington state – one of the top 10 U.S. dairy states – dairy is the state's second biggest agricultural money-maker, with a direct economic impact valued at $1.3 billion.

As the industry changes, agricultural workers like Aquilar and Martinez are pushing to end what many consider outdated exemptions to wage and workplace protection requirements. "We want to make a better working environment for everybody," says Aquilar.

Elizabeth Grossman is a journalist specializing in science and environmental issues.