Oregon's New Ag Overtime Law Explained
Did you know that under Oregon’s new agricultural overtime law farmers need not pay overtime for members of an immediate family nor do they need to pay salaried exempt employees overtime wages when the overtime threshold is achieved?
 |
Jessica Sandrock speaks at a recent grower meeting. |
These and other explanations of Oregon’s ag overtime law were provided during a presentation by Jessica Sandrock, Learning and Development Specialist with Oregon’s Bureau of Labor and Industries (BOLI), at a recent grower meeting.
Sandrock, part of a three-person team with the Agriculture Compliance and Education Unit of BOLI, addressed some of the most common questions she has received since she started in her position last year.
The most common question she has fielded thus far into 2024, she said, is whether the overtime threshold changed beginning January 1 of this year to 48 hours. “I’ve gotten a number of emails in the last two weeks asking if we switched to the 48-hour threshold,” Sandrock said during her presentation on January 31. “That’s not until 2025.”
The new agricultural overtime law, authorized by House Bill 4002 in the 2022 short session, went into effect January 1, 2023. Employers are now required to pay overtime wages of time-and-a-half to agricultural workers after they work 55 hours in one workweek. Starting January 1, 2025, employers will be required to pay overtime to agricultural workers after they work 48 hours in one workweek. Starting January 1, 2027, employers will be required to pay overtime to agricultural workers after they work 40 hours in one workweek.
Among other common questions Sandrock has received, several have to do with exemptions, of which there are six, including the exemptions for immediate family. Under Oregon rules (OAR 839-020-0004) the immediate-family exemption applies to an employer’s grandfather, grandmother, father, mother, son, daughter, sister, brother, uncle or aunt. Federal Code (29 CFR §780.308) also includes step-children, foster children, step-parents and foster parents in the definition of immediate family.
Within another exemption, local hand harvest or pruning workers who are paid piece rate and have worked fewer than thirteen weeks during the previous calendar year are exempt from overtime. Sandrock emphasized that this exemption does not apply to migrant workers. “These are local workers. So, they live in your community, but they are only working a very short season,” she said. “A lot of people call this the “teacher exemption.” She noted that the employer will need to have proof that the worker worked less than thirteen weeks the previous year to qualify for this exemption.
Another exemption applies to harvest and pruning workers who are paid piece rate and work for an employer who did not exceed 500 piece-rate workdays of labor in any quarter of the previous year. “This is considered the small farm exemption,” Sandrock said.
Also exempt from the law’s provisions are migrant hand-harvest workers 16 years of age or younger who are paid the same piece rate as workers over the age of 16.
Any employee whose principal duties are administrative, executive or professional and who performs predominantly intellectual, managerial or creative tasks and is paid on a salary basis is also exempt from the overtime provisions.
Sandrock noted that this exemption can be misinterpreted, so farmers need to be careful when applying it. Just because an employee is paid a salary, for example, does not exempt them from the overtime provisions. And just because an employee has manager in his or her title does not automatically exempt them from overtime provisions. The employee needs to meet certain job duty requirements, such as that their primary duties are managerial or that their daily tasks affect the business of the farm. Also, they must supervise two or more full-time employees (or the equivalent), to quality for the exemption.
“If they don’t meet these criteria of managing two full-time employees or being able to make recommendations on hiring and firing, then they wouldn’t qualify as being an exempt employee,” she said.
As for administrative staff, to be considered exempt, they would need to do more than office work. They would also need to perform non-manual work directly related to management policies or business operations.
“So, it is more than just someone who’s answering phones, responding to emails,” she said. “They actually have responsibilities that have to do with policies of the business.”
|
“So, it is more than just someone who’s answering phones, responding to emails,” she said. “They actually have responsibilities that have to do with policies of the business.”
Other examples of job duty criteria that qualify a manager or employee as exempt is handling complaints and grievances and carrying out discipline when needed. Or they need to be someone who is controlling the flow and distribution of material supplies and merchandise and be operating independently. They also have to be doing supervisory tasks to be qualified as exempt.
In response to a participant’s question, Sandrock said that someone with a specialized expertise, such as a farm’s full-time agronomist, might qualify as an exempt employee. An employee with specialized expertise must meet the professional job duties criteria, which includes performing work that requires the advanced knowledge afforded to the employee by having completed a specialized degree. In general, it is necessary to have at least a bachelor’s degree to meet the educational requirement of a professional employee.
Sandrock encourage employers to review BOLI’s webpage for Salaried Exempt Employees and to get a copy of BOLI’s Employee Classification and Wage and Hour Exemptions Handbook to ensure employees are classified correctly.
Another question Sandrock is often asked is whether office staff qualify as exempt. The answer, she said, is it depends. “And it depends for two reasons,” she said. “Your office staff must meet the secondary definition of agriculture, in that their job applies specifically to what is happening on the farm and to the farm business.”
Agricultural workers who handle or work on products that aren’t grown on the farm that they’re employed by are entitled to overtime under both state and federal law (i.e. after 40 hours), she said.
For agricultural workers who are paid by both piece rate and hourly rate, an employer must track hours and pay overtime based on the weighted average of both piece rate and hourly rate. Employers can find example calculations on BOLI’s Minimum Wage and Overtime in Agriculture webpage.
Another question Sandrock gets a lot has to do with whether a farm is responsible for paying overtime if working with a farm labor contractor. In such joint employment situations, both parties may share responsibility for ensuring compliance with wage and hour obligations. Joint employment determination by BOLI is guided by federal law 29 CFR §825.106 “So regardless of how your contract is written, even if the farm labor contractor is taking care of payroll and they are paying their people, if you hired the farm labor contractor, you have joint responsibility to ensure it’s being done right.
“So, just be sure to be talking to your farm labor contractors, seeing records that they’re paying accurate payroll,” she said. “If for some reason a worker were to say I was owed overtime and I didn’t get paid overtime, it would be the farm labor contractor and the farm that employed that farm labor contractor who would be responsible.”
She also advised growers to check and ensure that a farm labor contractor is licensed and that their license is up to date. Employers can view an active labor contractors list on BOLI’s Labor Contracting Licensing webpage.
Sandrock said that BOLI created the Agricultural Compliance and Education Unit to serve as a resource for Agricultural workers and employers statewide.
“We are a three-person team,” she said. “We serve the whole state. We do customized presentations for groups, and we respond to any questions via email or phone. I will get back to you within 24 hours and I can assist you in getting your questions answered.”
Also, she said that her position is housed in BOLI’s Wage and Hour Division. “I’m 100 percent education and resource for the ag industry. We are here to support agriculture,” she said.
To view a complete list of Frequently Asked Questions, visit BOLI’s Minimum Wage and Overtime in Agriculture webpage. To get answers to questions about Oregon’s agricultural overtime law, or any other wage and hour questions related to agriculture, email ag.overtime@boli.oregon.gov or call 971-245-3844.