Farmers must pay all piece-rate workers for breaks — not doing so will most likely result in claims and penalties.
The State of Washington Supreme Court decided on July 16 that employers must pay piece-rate workers for rest periods “separate and apart from the piece rate.” Farm workers paid by the task are entitled to rest-break pay beyond the negotiated piece rate, the high court said. The ruling is the result of a federal class action lawsuit filed by Skagit County berry farm laborers.
Washington State regulations mandate that employers cover the cost of 10-minute rest breaks every four hours for all workers in all industries. Given that apples are the state’s most valuable crop and seasonal workers are most likely to be paid by piece rate, this ruling could add significant labor costs for Washington fruit growers. The court’s decision in Demetrio v. Sakuma Bros. Farms, Inc., requires employers to pay for rest periods in an amount equal to the greater of either:
- The minimum wage or
- The “regular rate” (calculated by dividing the worker’s total weekly piece work earnings by the hours worked, excluding required break times, whether they are taken or not).
What is regular rate?
If a worker’s total piece-rate earnings for the week are $800 and the person worked 40 hours, including the required two 10-minute rest-breaks each day (total of 10 required rest breaks in five days), the workers’ “regular rate” would be $800 divided by 40 hours minus 100 minutes of required rest-breaks. This comes to approximately $20.87/hour. Because this is greater than the minimum wage, the worker would be paid separately for the 100 minutes of required rest-breaks at the regular rate of $20.87/hour (an additional $34.78 for the week), on top of the piece work pay of $800. Had the regular rate been less than the current minimum wage of $9.47/hour, it would be adjusted up to the minimum wage.
The court took no position on whether the ruling would be retroactive, so it is possible to see more claims for back wages and damages for up to three years. Other potential issues that were not specifically addressed include other non-direct production activities, such as walking from field to field, moving ladders, or emptying apple bags.
What should you do?
First and foremost, employers should begin paying all piece-rate workers separately for breaks as described above — not doing so will be a violation of wage and hour laws and will most likely result in claims and penalties. It is possible that employers may be liable for past rest-break payments as well as interest and penalties on the amounts owed. So it is important preserve all payroll records for the prior three years.
How we can help
In general, the safest approach is to simply begin paying for breaks immediately and document that you have done so at the correct regular rate. However, some farmers are also weighing a few other compensation models for workers. These other models may be difficult to implement due to long standing industry practices, as well as cost and administrative burden, which are all factors to consider. CLA can help you balance the alternative compensation factors to determine if they are appropriate for your operation.