Crush in Compliance with California’s Wage Laws

By Brent M. Giddens and M. Leah Cameron

Crush season is an exciting and important time of year for any winery, but for modern agricultural enterprises doing business in California, the state’s complex web of wage and hour employment laws presents a trap for the unwary at this already hectic time.  The intensive labor demands of crush are likely to implicate wage and hour laws that may not be an issue during the rest of the year.  While we cannot touch on all of the potentially relevant laws in this article, the following are arguably the most important, since violations are likely to present the greatest liability and nearly every employer with a non-exempt workforce is likely to encounter them.[1]

Overtime

First, a demanding crush season comes with an inevitable increase in overtime.  Businesses that are focused entirely on grape-growing or supplying agricultural workers, i.e., those planting, caring for, or actually harvesting crops, are permitted to have their employees work up to ten hours per day up to six days a week without incurring overtime pay (see IWC Wage Order No. 14).[2]  Once these employees work over ten hours in a day or any hours on the seventh day of the week, they must be paid at one-and-a-half times their regular hourly rate.  If any work is performed on the seventh day of the week in excess of eight hours, these employees must be paid double their regular hourly rate for those hours.

However, any business engaged in handling grapes after harvest (read: winemaking) are subject to industry specific wage orders that do not provide the same generous 10-hour/6-day overtime threshold allowed for pure growing operations.  Although everyone in the wine industry tends to work long hours during crush, any vineyard engaged in the winemaking process (and any other wine industry business not strictly limited to growing, maintaining, or harvesting crops) will be subject to the more standard 8-hour/40-hour overtime threshold, which requires paying hourly employees at one-and-one-half times their regular hourly rate for all hours worked over eight in one day, forty in one week, or the first eight hours on the seventh work day, and double the employee’s regular hourly rate for all hours worked over twelve in one day and over eight on the seventh work day.

Additionally, while the 10-hour/6-day agricultural overtime threshold remains in place for the 2017 crush, the recently passed Assembly Bill 1066 will begin lowering this threshold incrementally starting in 2019, ultimately bringing it in line with the rest of the work force’s 8-hour/40-hour standard.

Meal Periods

Long shifts can also implicate meal and rest break issues not normally encountered during the rest of the year.  Most employers are aware that they must provide an uninterrupted and duty-free meal period of no less than thirty minutes any time an employee works more than five hours in a day, except that if the total work performed that day is not more than six hours, then the meal period may be waived by mutual consent of the employer and employee.  However, a second meal period of no less than thirty minutes is required if an employee works more than ten hours in a day, though the second meal period may be waived by mutual consent of the employer and employee if the total hours worked is no more than twelve hours and if the first meal period was not also waived.  Employers should always get any meal period waivers from their employees in writing.

Rest Breaks

Finally, every employer must permit a ten minute uninterrupted and duty free rest break for every “four hour work period, or major fraction thereof” and such rest periods should be provided, insofar as practicable, in the middle of each work period.  A “major fraction thereof” means anything more than two hours.  Therefore, an employee working for ten and a half hours, for example, would be entitled to three ten minute rest periods.

The importance of complying with these wage and hour regulations can’t be understated since a failure to do so may subject the employer to multiple costly penalties enforced either through Labor Commissioner investigations or private court actions.  Even wineries that use labor contractors to supply their agricultural workers should heed these regulations, since a contractor’s violations, under certain circumstances, could be imputed to the winery under the joint employer doctrine.[3]  Since crush is already such a demanding time for wineries, the time to think ahead about compliance is now.

[1] The existence of collective bargaining agreements, though beyond the scope of this article, could alter the wage and hour requirements discussed herein.

[2] All potentially applicable wage orders can be found at https://www.dir.ca.gov/iwc/wageorderindustries.htm.  Further guidance, including the Division of Labor Standards Enforcement booklet called “Which Wage Order” can be found at www.dir.ca.gov/dlse.  Because of the potentially overlapping coverage of Wage Orders 8, 13, and 14, employers would do well to spend a few moments studying these resources in order to accurately determine the regulations applicable to their business.

[3] However, a winemaker that merely purchases harvested grapes from an independent third-party would not normally be liable for any wage and hour violations committed by that third-party.