Evolving Agricultural-Worker Compensation:
A Constitutional Right to Overtime Pay
Lucio Maldonado and Nate Bishop | December 2, 2020
This month the Washington Supreme Court ruled that dairy workers are protected by minimum wage laws and entitled to overtime pay. This ruling could have wide-reaching implications for Washington employers and employees.
Most workers are protected by RCW 49.46, Washington’s Minimum Wage Act. Among other protections, the Act limits the work week to 40 hours and requires employers to pay time-and-a-half for overtime beyond 40 hours. But some industries—including farming—are exempted from these overtime pay requirements.
In Jose Martinez-Cuevas v. DeRuyter Brothers Dairy, Inc.,  Mr. Martinez-Cuevas filed a class action lawsuit against his employer, DeRuyter Brothers Dairy, on behalf of himself and his fellow DeRuyter dairy workers. The DeRuyter farms operated 24 hours a day, 7 days a week, with workers milking approximately 3,000 cows per shift with 3 shifts per day. The dairy workers sued for overtime wages and judgment declaring the farmworker exemption unconstitutional.
The dairy workers based their constitutional argument on the Washington Constitution’s privileges and immunities clause, which states: “[n]o law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.” The Washington Supreme Court has recognized that Washington’s privileges and immunities clause is more protective than its federal corollary, and therefore, in certain situations, an independent analysis under our state’s version is necessary.
This independent state analysis is necessary when a law grants a benefit implicating fundamental rights of state citizenship. When a law does so, Washington courts employ a two-part evaluation. First, the court considers whether that benefit qualifies as a “privilege” or “immunity.” Second, the court considers whether there is a reasonable ground for granting that privilege or immunity.
Applying this analysis, the Washington Supreme Court found that the overtime exemption law implicated a fundamental right. The Court interpreted article II, section 35 of the Washington Constitution as establishing a “fundamental right of Washington workers to health and safety protections.” The Court further noted that the long hours and dangerous conditions dairy workers face entitled them to the “statutory protections set out in article II, section 35.” The Court then found that the legislative history of the Minimum Wage Act offered no reasonable basis for excluding dairy workers from the Act’s protections. As such, the Court concluded that the exemption in RCW 49.46.130(2)(g) violated the privileges and immunities clause as applied to dairy workers.
The Court’s decision will have an immediate impact on dairy farmers who must now abide by overtime pay requirements. But the Court left open several questions that may have a broader impact as well.
First, the Court declined to decide whether its ruling applied retroactively; that is, whether dairy farmers would owe overtime wages for past work in addition to future work. The Court correctly noted that the issue was not properly before them, but there was still significant disagreement on how a future court should view retroactivity.
In an impassioned three-Justice concurrence, Justice González opined that if the retroactivity question had been before the Court, he would apply the ruling retroactively. He recognized that retroactive application would impose great costs to employers and that DeRuyter may have justifiably relied on the overtime exemption statute. But he still leaned in favor of retroactive application because awarding past overtime pay would further the Minimum Wage Act’s policy objectives and right a constitutional wrong for the historically-disenfranchised minority farmworkers.
In contrast, Justice Johnson, in a four-Justice dissent, said he would not apply the ruling retroactively because it would produce a substantially inequitable result for many farm employers who had no reason to foresee the unconstitutionality of the statute. For now, the ruling does not apply retroactively, but the full cost to the dairy industry and the total compensation for workers will be unknown until a court rules on the issue.
Second, the Court cabined its opinion to apply only to dairy workers, but other agricultural workers may experience similar hours and conditions that, according to the Court’s logic, could entitle them to Constitutional protections. Given the diverse agricultural industry in Washington, though, this logic may not apply to all sectors uniformly. For example, the Court explicitly distinguished between “factory-like” dairy work from piece-rate seasonal work. Thus, some sectors may continue to be exempt for the overtime pay requirement.
Third, the Court evaluated only the agricultural worker exception in the Minimum Wage Act. But the overtime statute, RCW 49.46.130, lists several other industries that are exempted. This includes “seamen” and those involved in the canning industries. Though the nature and seasons of those jobs may differ from dairy workers, a court may find that those industries are also subject to the overtime statute.
Finally, the Court broke new ground by finding that article II, section 35 of the Washington Constitution gives a right to laws that protect the health and safety of workers. However, the opinion does not clarify how those laws must protect health and safety. For example, if an employee is injured in the normal course of her work and her employer complied with all laws, could that employee sue the state for failing to enact laws that adequately protect her? Or should the opinion be read more restrictively as holding that, once the state enacts a workplace protection law, it must apply those protections uniformly to all citizens (or at least have a reasonable basis for failing to do so)?
Although these questions remain unanswered for now, Martinez-Cuevas should be viewed as a significant step in an evolving field that will determine the extent to which the legislature must protect Washington employees and how employers must compensate their workers. This decision may apply only to dairy farms, but it is only a matter of time until litigants attempt to apply the ruling to other sectors as well.
As always, should you have any questions about this article or need further information, please do not hesitate to contact Corr Cronin attorneys Lucio Maldonado or Nate Bishop.
 RCW 49.46.130(1).
 RCW 49.46.130(2)(g).
 Wash. Const. art. I, § 12.
 Jose Martinez-Cuevas, No. 96267-7, slip op. at *10 (Wash. Nov. 5, 2020).
 Article II, section 35 reads, “The legislature shall pass necessary laws for the protection of persons working in mines, factories and other employments dangerous to life or deleterious to health; and fix pains and penalties for the enforcement of the same.”
 Martinez-Cuevas, No. 96267-7, slip op. at *7 (Wash. Nov. 5, 2020) (citing Lopez Demetrio v. Sakuma Bros. Farms, 183 Wn.2d 649, 653 (2015)).
 “Article II, section 35 mandates legislative action and constitutes a fundamental right of Washington workers to health and safety protection.” Martinez-Cuevas, No. 96267-7, slip op. at *12 (Wash. Nov. 5, 2020).