Washington Supreme Court Holds Law Exempting Dairy Workers from Overtime Unconstitutional

Washington Supreme Court En Banc Holds Law ExemptingDairy Workers from Overtime Unconstitutional -ESSB 5172, Effective July 25, 2021, Provides Additional DirectionOn November 5, 2020, the Washington Supreme Court (en banc) held that the law exempting dairy workers from overtime pay is unconstitutional under Washington State’s Constitution. See Jose Martinez-Cuevas v. DeRuyter Bros. Dairy, Inc., 9-267-7. The Court held,

RCW 49.46.130(2)(g) violates article I, section 12 as applied to dairy workers, which is clearly supported by the arguments presented and the factual record before us.

Id., Page 18. Shortly following this decision, on May 11, 2021, Governor Inslee signed into law Enrolled Substitute Senate Bill (“ESSB”) 5172, which becomes effective July 25, 2021.ESSB 5172 provides a three-year overtime phase in for agricultural workers. It provides:Overtime Phase-In. Agricultural employees are entitled to overtime as follows,

• beginning January 1, 2022, no agricultural employee shall be employed for more than 55 hours in any one workweek unless the agricultural employee receives one and one-half times the employee's regular rate of pay for all hours worked over 55 in any one workweek;
• beginning January 1, 2023, no agricultural employee shall be employed for more than 48 hours in any one workweek unless the agricultural employee receives one and one-half times the employee's regular rate of pay for all hours worked over 48 in any one workweek; and
• beginning January 1, 2024, no agricultural employee shall be employed for more than 40 hours in any one workweek unless the agricultural employee receives one and one-half times the employee's regular rate of pay for all hours worked over 40 in any one workweek.

The new law also provides a Safe Harbor. It prohibits damages, penalties, attorneys' fees and costs, or other types of relief related to overtime claims under the Minimum Wage Act's agricultural exemption, as it existed on November 4, 2020.