Introduction
The Fair Labor Standards Act (“FLSA”) is a law passed by Congress that, among other things, sets the federal standards for minimum wage and overtime standards. While every employer covered under the FLSA must meet its requirements, states are also free to enact their own standards that employers within those state boundaries must also follow. The National Agricultural Law Center has created an Overtime & Minimum Wage for Agricultural Workers state compilation as a resource to view individual states’ statutory requirements.
Federal
Minimum Wage
While some agricultural workers must be paid at least the FLSA minimum wage, many fall within an exemption, excluding them from that protection. Agricultural employees are covered by the FLSA and entitled to the federal minimum wage if they are employed by a farm that used 500 or more “man-days” of agricultural labor during any calendar quarter in the previous calendar year. A “man-day” means any employee performing at least one hour of agricultural work during a day. If an employer does not use 500 or more “man-days” in a calendar quarter then the employer would be exempt and not required to pay the federal minimum wage. For example, a farm employing two employees working eight hours a day, five days per week for three months, would not reach the 500 “man-day” limit. But a farm employing ten employees working eight-hour days for five days a week for three months would meet the 500 “man-day” threshold and be subject to the federal minimum wage.
There are numerous other exemptions for agricultural workers that would allow employers to pay them less than the federal minimum wage. Additional exemptions from the minimum wage and overtime provisions of the FLSA for agricultural workers[1] include:
- Agricultural workers primarily involved in the production of livestock
- Hand harvest laborers who commute from their permanent residence daily, are paid on a piece-rate basis in traditionally piece-rated jobs, and who were employed in agriculture less than thirteen weeks during the preceding calendar year
- Any worker involved with the production of any marine products, such as fishing or canning
- Agricultural workers who are immediate family members of their employer
- Minors, 16 years of age or under, who are hand harvesters, paid on a piece-rate basis in traditionally piece-rated occupations, employed on the same farm as their parent, and paid the same piece rate as those over 16
Overtime
As defined by the FLSA, all agricultural workers are exempt from the overtime pay provision of the FLSA. This means that agricultural workers do not have to be paid more than their regular pay rate when they’re asked to work over forty hours per week.
Fairness for Farm Workers Act
There have been several attempts to change the FLSA in regards to the overtime requirement, however none of them have been successful. The Fairness for Farmworkers Act was first introduced to Congress in 2018 and has been introduced every year since. However, it has not made it out of committee, and has not become a law. If passed, the Fairness for Farmworkers Act would require employers to pay agricultural workers more for the time that they worked over their regular hours. The Fairness for Farmworkers Act uses a schedule to phase in the overtime requirement. Initially, time worked in excess of 55 hours in any workweek would require overtime pay. Every year after that, the hours requirement would decrease by five until it reaches the final overtime cutoff of 40 hours in any workweek. Employers with less than 25 employees would be on a slightly different time schedule, giving them several years before they would be required to pay overtime to agricultural workers. Currently, the Fairness for Farmworkers Act is in the House and has been referred to the Committee on Education and Labor. No actions have been taken since May of 2021.
State
Individual states have the power to create and implement more inclusive overtime and minimum wage laws as long as they comply with federal laws. This means that states have the ability to require a higher rate of pay for overtime, even if existing federal laws do not. States can also require that agricultural workers receive a higher minimum wage than the federal minimum wage.
Overtime
States that have adopted overtime laws for agricultural workers include California, Colorado, Hawaii, Minnesota, New York, and Washington. Most states that are implementing overtime requirements are phasing them in. For example, California started to phase in an overtime requirement for agricultural workers. In 2019, California mandated that people employed in an agricultural occupation could work up to 9.5 hours in a day or up to 55 hours in a workweek before receiving overtime compensation. In 2020, the hours in a day decreased to 9, and the hours in a week were reduced to 50 for overtime compensation. Each year the hours decrease until the final overtime requirements are in place. Starting January 1, 2022, in California, it is required that any agricultural employee working more than 8 hours a day or more than 40 hours a week receive overtime compensation. Additionally, California has a slightly different schedule for employers with 25 or fewer employees, giving them more time to implement these changes.
Minimum Wage
Individual states have the power to enact their own minimum wage requirements as long as they meet the minimum requirements of the FLSA. While most states that have included agricultural workers in their minimum wage requirements, some have not. In states that have not, the agricultural workers protected by the FLSA requirements must still be paid at least the federal minimum wage. Additionally, Massachusetts, New Jersey, Pennsylvania, and Wisconsin have different minimum wages for agricultural workers.
Even when states include agricultural workers in their minimum wage laws, many follow the FLSA framework, including all of the exemptions to the federal minimum wage. In other words, on both the state and federal levels there are numerous exemptions for agricultural workers that make them ineligible for minimum wage protections. For example, one of the exemptions that many states have is the 500 “man-days” requirement. Other exemptions from the state minimum wage can include hand harvest laborers who commute from their permanent residence daily, paid on a piece-rate basis in traditionally piece-rated jobs, and who were employed in agriculture less than thirteen weeks during the preceding calendar year. There are also exemptions for immediate family members of the employer and agricultural workers primarily involved in livestock production. However, each state has its own unique minimum wage law requirements, and exemptions differ from state to state.
Conclusion
While the federal government sets the minimums that each state must follow, states are free to enact their own legislation to further protect agricultural workers. Several have done so. Further, several additional states are attempting to pass legislation establishing overtime requirements for farmworkers. For a full list of states that have implemented overtime requirements and minimum wage requirements, the National Agricultural Law Center has created the Overtime & Minimum Wage for Agricultural Workers state compilations.
To view the Overtime & Minimum Wages for Agricultural Workers state compilations, click here.
To view the Fair Labor Standards Act, click here.
To view the proposed Fairness for Farmworkers Act, click here.
[1] The FLSA defines agriculture as “farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 1141j(g) of title 12), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.”