Update, April 16, 2021: On Thursday evening, the Washington state senate voted to approve House amendments to SB 5172. It’s now headed to the Governor Jay Inslee’s desk, where he’s expected to sign it into law.

Legislators in Washington state are on the cusp of passing one of the country’s strongest farmworker overtime proposals into law—a move that worker advocates consider a major step toward addressing labor protection gaps in agriculture.

Last Friday, the state house voted to pass the legislation, referred to as Senate Bill 5172, which would require employers to pay farm workers time-and-a-half for all labor performed over 40 hours per week. This threshold would be phased in gradually: Employers will have to pay overtime for hours worked over 55 hours per week starting in 2022, then for those over 48 hours per week come 2023, achieving full worker parity by 2024. This would make Washington the first state to fully close overtime exclusions for farm workers. SB 5172 passed in the state senate in March.

The bill defines “agricultural employee” as anyone who works in the harvesting, packaging, and transportation of agricultural commodities. It also includes commercial food processing workers, and those who harvest and process oysters. State law currently exempts farm workers from overtime protections, as do federal labor laws. 

“This is 60 years in the making,” said Edgar Franks, political director at Familias Unidas por La Justicia, a farmworker union involved in the bill’s development. He referenced the state’s first minimum wage law, which took effect in 1959. “To have it passed right now, here in Washington state, it’s a big step to farmworker justice.”

Farm workers have long been excluded from overtime pay protections under the Fair Labor Standards Act of 1938. (They were also left out of other New Deal legislation, including protections against retaliation for joining a union.) Historians and labor advocates often characterize these exemptions as a “Faustian bargain” struck by President Franklin D. Roosevelt to secure the support of southern Democrat lawmakers, who represented farmers dependent on low-wage, Black workers. Today, the workforce largely consists of low-wage, Hispanic workers, according to the Department of Labor.

SB 5172 could help to tackle the “racist legacy” built into state and federal labor laws, said Joe Kendo, government affairs director of the Washington State Labor Council, which lobbied on behalf of Familias Unidas por La Justicia.

“There are a lot of people in agriculture right now who have been denied the protections of overtime,” he said. “It’s long past time that we address that.”

If signed into law—a high likelihood at this point—SB 5172 would make Washington the first state to fully end overtime exemptions for farm workers. Although five other states have laws on the books that mandate some kind of overtime compensation for farm workers, most come with significant caveats. (Farmworker Justice has a handy map of different overtime laws across the country.) For example, in New York and Maryland, workers are eligible for overtime only for work in excess of 60 hours per week. In California, a 40-hour per week threshold is gradually getting phased in, though it won’t fully take effect for all employers until 2025. In Hawaii, farm workers are eligible for overtime at the 40-hour mark, but the state has what is called a “seasonality provision,” which allows employers, for almost half the year, to opt out of paying overtime until workers reach a 48-hour threshold.

The Washington Farm Bureau has said that it will pursue a carveout similar to Hawaii’s in the next legislative session.

“This bill presents a significant change to the state’s wage-and-hour laws and there’s no doubt that some farms will not survive the higher costs of labor that will result,” said Breanne Elsey, associate director of government relations for the group.

Washington’s bill has a curious backstory: In November of 2020, the state supreme court ruled that the exclusion of dairy workers from overtime protections violated the state constitution, and ordered producers to begin providing time-and-a-half going forward. This sent the rest of the state’s agricultural industry into a tizzy: The court was divided on whether the ruling applied to non-dairy farm workers, as well as the question of whether employers owed workers back pay. In the wake of the decision, workers began to file unpaid overtime lawsuits against ag employers across the state.

This is where SB 5172 first entered the picture: Its original sponsors introduced it with the goal of blocking farm workers from accessing back pay for unpaid overtime. After all, their argument went, it would be unfair to financially penalize employers for simply following state labor laws prior to the November 2020 ruling.

That version of the bill didn’t make it very far. Instead, the state senate labor committee introduced a substitute bill that would mandate overtime. Following negotiations with its original sponsors, a compromise was struck to eliminate a back pay provision, Kendo said. As a result, the legislation counts the Washington Farm Bureau and other ag employer groups among its supporters, for the protection it provides against overtime litigation. (The bill’s original sponsor, state senator Curtis King, did not respond to multiple requests for comment.)

SB 5172 is currently headed back to the senate, where lawmakers will vote on a technical amendment. Kendo expects Governor Jay Inslee to sign it into law by April 25, the end of the current legislative session.