Harvest in Compliance with California’s Changing Overtime Laws

By M. Leah Cameron

Harvest season is the time of year when every winegrower’s attention turns primarily to the grapes themselves. For modern winegrowers doing business in California, attention must also be paid to your workforce and compliance with California’s changing and complex overtime laws. The intensive demands of harvest and the ubiquitous use of seasonal workers during this time are likely to create overtime complications that may not be an issue during the rest of the year.

Because California’s overtime laws are currently in flux for agricultural workers, it is imperative that winegrowers and companies supplying agricultural workers to winegrowers pay special attention to applicable overtime laws during this busy season.[1]  Although agricultural workers, i.e., those engaged in the preparation and treatment of farmland as well as the care and harvesting of crops, have historically been permitted to work up to 10 hours per day and six days a week without incurring overtime pay, Assembly Bill 1066 began lowering this threshold incrementally on January 1, 2019, with the ultimate goal of bringing it in line with the rest of the work force’s eight-hour per day/40-hour per week standard by 2025.  (see IWC Wage Order No. 14 ).[2]

For the 2019 harvest season, large employers with 26 or more employees must pay overtime (1½ times the employee’s regular hourly rate) to agricultural workers after 9 ½ hours worked in a day or 55 hours worked in a workweek.  Small employers of 25 or fewer employees are still only required to pay agricultural workers overtime when they work over 10 hours in a day or six days in a week.  However, for future harvest seasons, beware that these thresholds will continue to go down for both small and large employers.[3]

For the 2019 harvest season, both small and large employers are only required to pay double time (twice the employee’s regular hourly rate) for all hours worked over eight hours on the seventh day of work in the workweek. However, agricultural workers must also be paid double time for all hours worked over 12 in any one workday beginning in January 2022 for large employers and January 2025 for small employers.

Unfortunately, the applicable laws do not specify how to count employees. However, California’s Division of Labor Standards Enforcement has issued FAQs concerning state minimum wage increases that provide some useful guidance:

• The threshold is calculated based on the number of workers employed during the pay period in which the overtime is owed.
• All employees should be counted, including exempt employees and regardless of hours or locations worked.
• In joint employment scenarios, all individuals under an employer’s control are counted, therefore, if any part of the workforce is provided by a labor contractor, those individuals should be included in the headcount.

However, any workers engaged in handling grapes after harvest are subject to the more standard overtime threshold applicable to the majority of California’s work force, which requires paying hourly employees at 1½  times their regular hourly rate for all hours worked over eight in one day, 40 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 12 in one day and over eight on the seventh work day.

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.  Given their complexity and importance, the time to sort out overtime compliance issues now, so that the grapes themselves can remain the primary focus during your upcoming harvest season.

[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 https://www.dir.ca.gov/dlse/WhichIWCOrderClassifications.PDF.  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 and workers.

[3] The schedule for future reductions in agricultural worker overtime pay thresholds can be found at https://www.dir.ca.gov/dlse/Overtime-for-Agricultural-Workers-FAQ.html.