Ag Overtime Resources

AB 1066 (Gonzales-Fletcher, D-San Diego) will require significant changes for agricultural employers to implement new overtime rules, adopt new procedures to comply with day-of-rest requirements and to understand how AB 1066 applies parts of the Labor Code to agriculture that did not previously apply to agricultural employment (Governor Brown Signs Ag Overtime Bill, FELS website); Heavy New Costs for Agricultural Employers, FELS website). 

 Basic Ag Overtime Changes, 1/1/2019 through 1/1/2025:   

• 1/1/19: “any person employed in an agricultural occupation” gets overtime (1.5x the employee’s usual rate of pay) after 9½ hours in a workday, or after 55 hours in a workweek, if the employer is a “large” employer (employs 26 or more).
• 1/1/20: an ag employee (large employer) gets overtime after 9 hours in a workday or 50 hours in a workweek.
• 1/1/21: an ag employee (large employer) gets overtime after 8½ hours in a workday or 45 hours in a workweek.
• 1/1/22:
  • an ag employee (large employer) gets:
    • overtime after 8 hours in a workday or 40 hours in a workweek;
    • double-time (2x the employee’s regular rate of pay) after 12 hours in a workday.
  • an ag employee whose employer employs 25 or fewer employees (a “small” employer) gets overtime after 9½ hours in a workday or 55 hours in a workweek.
• 1/1/23: an ag employee (small employer) gets overtime after 9 hours in a workday or 50 hours in a workweek.
• 1/1/24: an ag employee (small employer) gets overtime after 8½ in a workday or 45 hours in a workweek.
• 1/1/25: An ag employee (small employer) gets:
  • overtime after 8 hours in a workday or 40 hours in a workweek;
  • double-time after 12 hours in a workday.

• AB 1066 applied the requirements of a long-standing provision of the Labor Code requiring employers to provide their employees one day's rest every seven days:(Day of Rest Requirments Applicable to Ag on 1/1/17, FELS website, Jan. 5, 2017):
  • Repealed Labor Code §554’s long-standing exemption for ag employees from the day-of-rest requirements in the Labor Code;
  • Labor Code §552 forbids an employer to “cause” employees to work more than six days in seven.
  • Exemption for work performed to protect life or property from loss or destruction.
  • Allows employees to accumulate the equivalent of one day’s rest in seven within the same calendar month if “the nature of the employment reasonably requires that the employee work on seven or more consecutive days....”
  • Does an employer cause employees to work merely by offering and letting them work on seven or more consecutive days (versus requiring them to work on seven consecutive days)?
• The California Supreme Court's recent Mendoza opinion (CA Supreme Court Rules on Day-of-Rest Case, FELS website, May 8, 2017; updated May 24, 2017) indicated that employers are free to permit employees who understand their right to a day of rest to work seven days without penalty; FELS developed an acknowledgement form in English and Spanish that employers should have employees sign each seventh day worked by employees.
• Mendoza v. Nordstrom:
  • “Day of rest” is guaranteed for each workweek, not each rolling seven-day period.
  • Employer can set the workweek’s start and end times.
  • Exception from “day of rest” for employees working not more than 30 hours per week or 6 hours per day applies only if the employee does not work more than six hours on any day of that workweek.
  • “Cause” means to “compel” or “induce” work on more than six days in seven.
  • Permitting or allowing an employee who understands the right to a rest day does not violate the “day of rest” requirement.
  • Paying employees seventh-day overtime as required by a Wage Order or by Labor Code § 510 does not “induce” an employee to work. 

• The daily and weekly overtime provisions in AB 1066, which apply to “any person employed in an agricultural occupation,” start to phase in on 1/1/19.
• Until then (at least), IWC Wage Order 14 exemptions should remain effective for:
• Employees doing irrigation work for more than ½ of their working time in a week
• Drivers whose hours of service are regulated by state or federal hours-of-service regulations
• Salaried managers
• Immediate family members
• A DIR employee indicated in writing concurrence with this interpretation, but that is not binding on the courts.
• Do you want to be the test case?

• Labor Code §510:
  
  [T]he first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee.... In addition, any work in excess of eight hours on any seventh day of a workweek shall be compensated at the rate of no less than twice the regular rate of pay of an employee. (Emphasis added)
• Labor Code § 510 and Wage Order 14 both require that time-and-a-half be paid for the first eight hours worked on the seventh day of work in a workweek.
• Wage Order 14 requires that double time be paid for hours worked over eight on the seventh day of work in a workweek.

Regular Rate of Pay Calculation for Sheepherders

The Office of the Labor Commissioner has recently released a guidance explaining how sheepherder employers are to calculate "regular rate of pay" for the purpose of calculating appropriate hourly rates for overtime premium pay.  In short, the Labor Commissioner's methodology requires these quantities to be calculated on the basis of the minimum monthly wage sheeperder employers are permitted to pay sheepherders under Labor Code Section 2695.2.  FELS has created a memorandum explaining the Labor Commissioner's guidance; you can read that memo here.  

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