By Ronald Miller, J.D.
RCW 49.46.130(2)(g)’s exemption from overtime for agricultural workers grants dairy farmers a privilege or immunity from paying otherwise mandatory overtime pay.
Finding that “milkers” employed at a dairy farm worked long hours in conditions dangerous to life and deleterious to their health, a divided Washington Supreme Court ruled that a provision in the Washington Minimum Wage Act (WMWA), which exempted agricultural workers from overtime pay, violated the state constitution and the equal protection clause. In this en banc decision, the state high court concluded that Article II, section 35 provides the dairy workers the fundamental right to health and safety protections of the Minimum Wage Act. It further concluded that the legislature lacked reasonable grounds for granting the overtime exemption to agricultural employers, and so declared RCW 49.46.130(2)(g) unconstitutional. Justice González filed a separate concurring opinion joined by Justices McCloud and Yu. Chief Justice Stephens filed a separate dissenting opinion joined by Justices Owens, Johnson, and Fairhurst, while Justice Johnson filed a separate dissenting opinion joined by Chief Justice Stephens, Fairhurst, and Owens (Martinez-Cuevas v. DeRuyter Brothers Dairy, Inc., November 5, 2020, Madsen, B.).
Constitutional challenge. Two employees who worked as milkers on a dairy farm filed suit claiming the employer failed to pay minimum wage to the dairy workers, did not provide adequate rest and meal breaks, failed to compensate pre- and post-shift duties, and failed to pay overtime. They sought a judgment declaring RCW 49.46.130(2)(g) unconstitutional. The parties eventually reached a class settlement resolving all but the overtime pay claims. The trial court approved the settlement. The parties stipulated to class certification of the remaining claims.
The employees alleged that class members generally worked over 40 hours per week without receiving overtime pay and labored in dangerous conditions. According to the employees, the agricultural exemption for overtime pay violates Article I, section 12 of the Washington State Constitution because it grants a privilege or immunity to the agricultural industry. Additionally, they argued that RCW 49.46.130(2)(g) violated the equal protection guaranty of the Washington Constitution. Further, they argued, health and safety protections are a fundamental right under Article II, section 35, so that strict scrutiny applies. Moreover, they asserted that RCW 49.46.130(2)(g) fails this and any other level of scrutiny.
Fundamental rights. The parties filed cross-motions for summary judgment. The trial court eschewed the employees’ contention that Article II, section 35 creates a fundamental right of state citizenship to employee protection laws. Instead it found in favor of the workers based on a different fundamental right—the right to work and earn a wage.
At issue before the Washington Supreme Court was whether RCW 49.46.130(2)(g) violates the privileges or immunities clause or equal protection, Article I, section 12 of the Washington State Constitution. Article I, section 12 provides that “No 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.” Historically, the state high court has read the anti-favoritism framework of Article I, section 12 as limited to fundamental rights of state citizenship.
Article I, section 12 was intended to prevent favoritism and special treatment for a few to the disadvantage of others, and it’s more protective than the federal equal protection clause and in certain situations, requires an independent analysis. The independent analysis applies only where a law implicates a “privilege or immunity” as defined in our early cases distinguishing the fundamental rights of state citizenship. In such situations, a two-step analysis is applied. The court first asks whether a challenged law grants a “privilege” or “immunity” for purposes of the state constitution. If the answer is yes, then the court asks whether there is a “reasonable ground” for granting that privilege or immunity. Benefits triggering this analysis are only those implicating fundamental rights of state citizenship.
Dangerous industries. Article II, section 35 of the Washington Constitution protects employees working in certain especially dangerous industries. The employees argue that Article II, section 35 established the fundamental right to statutory protection of citizens working in extremely dangerous conditions. Here, the state high court concluded that the milkers constituted the type of workers protected by Article II, section 35 because they worked long hours in conditions dangerous to life and deleterious to their health.
Moreover, the court concluded that Article I, section 12 case law bolstered its conclusion that Article II, section 35 creates the fundamental right of state citizenship to laws such as the WMWA that protect the health and safety of dairy workers. However, the WMWA excludes agricultural workers from the definition of employee and results in an exemption from the Act’s overtime requirement, RCW 49.46.130(2)(g). Thus, RCW 49.46.130(2)(g)’s exemption grants dairy farmers a privilege or immunity from paying otherwise mandatory overtime pay.
Thus, the Washington Supreme Court concluded that Article II, section 35 provides the dairy workers the fundamental right to health and safety protections of the WMWA. It therefore agreed with the trial court that RCW 49.46.130(2)(g) implicates a fundamental right and grants a privilege or immunity, satisfying the first prong of the privileges analysis.
Grounds for exemption. Moreover, the high court concluded that the legislature lacked reasonable grounds for granting the overtime exemption to agricultural employers. Here, the court pointed out the factory-like work at the dairy was unlike that of piece-rate seasonal workers. Further, other industries employing seasonal workers, such as retail, are not exempt from the overtime protections. Additionally, the legislative history did not reference seasonality or the variations of agricultural work were not considered during the passage of the WMWA.
Consequently, the high court found no convincing legislative history that illustrated a reasonable ground for granting the challenged overtime pay exemption. The stated purpose of the WMWA is to protect the health and safety of Washington workers, as required by Article II, section 35. In the face of this clear purpose and constitutionally mandated protection, the exemption in RCW 49.46.130(2)(g) is an impermissible grant of a privilege or immunity under article I, section 12 of Washington’s constitution.
Concurrence. In a separate opinion, Justice González agreed that the employees were entitled to summary judgment. He argued that the statutory exclusion of farmworkers from overtime pay deserves at least intermediate scrutiny because they labor in arduous and dangerous conditions, and are exposed to pesticides, use hazardous machinery, and work long hours in extreme heat and cold. However, since the 1930s, lawmakers have systematically excluded them from health and safety protections, including overtime pay afforded to workers in other dangerous industries. The desire to spare employers in one industry from costs cannot, by itself, justify excluding some workers from the health and safety protections afforded to others, he noted.
Dissents. In his dissent, the Chief Justice would hold that the agricultural exemption did not violate Article I, section 12 on legislative favoritism grounds or equal protection grounds. He would find that the agricultural exemption is rationally related to legitimate governmental policy. Thus, the dissent would reverse the trial court’s partial grant of summary judgment to the workers and remand for entry of summary judgment in the employer’s favor.
In a separate dissent, Justice Johnson argued that agricultural employers should not bear the overwhelming risk of financial devastation because they paid what the law required of them at the time. He urged that balancing of the equities in this case requires the court to apply the decision only prospectively to future cases.
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