Friday, January 29, 2021
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Washington farmers seek limit on OT back pay
By DON JENKINS
Capital Press
Washington farm groups are
asking state lawmakers to help agri-
culture employers fend off lawsuits
that retroactively seek overtime pay
for farmworkers.
The suits, two dozen and count-
ing, follow the state Supreme
Court’s 5-4 ruling in November
that declared withholding over-
time pay from dairy workers was
unconstitutional.
State law says underpaid work-
ers can reach back three years to
collect wages.
Farm groups argue it’s only
fair to limit retroactive pay. For
60 years, farmers went by a law
that exempted them from paying
time-and-a-half for hours over 40
worked in a week.
The groups also warn that ret-
Don Jenkins/Capital Press
Washington farm groups are-
backing legislation to limit a state
Supreme Court ruling on overtime
pay to the future, protecting farm-
ers from lawsuits seeking back pay.
roactive payouts and lawyer fees
could bankrupt producers. The
Washington State Dairy Federation
calculates dairies alone could be on
the hook for $90 million to $120
million in back wages.
Although the case involved only
dairy workers, the justices didn’t
draw any clear distinction between
dairy workers and other farmwork-
ers. All producers with employees
could face back-pay claims.
“If this happens to my farm,
we’ll go under,” Central Washing-
ton orchardist April Clayton said at
a press conference Monday orga-
nized by Save Family Farming, a
pro-agriculture group. “We fol-
lowed the law, and we shouldn’t be
penalized for following the law.”
Columbia Legal Services attor-
ney Andrea Schmidt said in an
interview that farmworkers should
get back pay, regaining a little of
what they lost over many years of
being denied overtime.
“That’s an incredible amount of
lost resources,” she said.
Senate Bill 5172, sponsored
by eight Republicans, echoes
the opinion of the four dissent-
ing justices in Martinez-Cuevas v.
DeRuyter Bros. Dairy.
Writing for the dissenters, Jus-
tice Charles Johnson said apply-
ing the ruling retroactively would
be unjust.
“Farm employers should not
bear the overwhelming risk of
financial devastation because they
paid what the law required of them
at the time,” he wrote.
The majority opinion did not
say whether the decision should be
retroactive or only applied going
forward. The court may issue an
additional ruling to answer the
question.
Three justices who signed the
majority opinion made clear in a
concurring opinion their sweeping
disdain for farm labor practices.
Since the ruling, 24 lawsuits
have been filed in Eastern Wash-
ington, according to the dairy
federation.
Northwest Washington dairy
farmer Jason Vander Kooy said he
expects the lawsuits to spread west.
“It’s going to be tough men-
tally,” he said. “These people can
come in and take away everything
I’ve put my life into.”
The farm groups say the back
pay claims will be particularly
hard on young farmers, including
minorities, who haven’t built up
their operations.
“New and beginning farmers
don’t have that cushion,” Washing-
ton Tree Fruit Association President
Jon DeVaney said.
DeVaney said the association
does not believe the court ruling
applied to tree fruit growers, though
some may be paying overtime to
hedge against future claims.
California dairy farmers
to determine quota fate
By CAROL RYAN DUMAS
Capital Press
Mateusz Perkowski/Capital Press
Roger Nyquist, chairman of the Linn County Board of Commissioners, supports the
redevelopment of a defunct paper mill in Millersburg, Ore., into an intermodal facili-
ty to switch containers from trucks to railcars.
Oregon truck-to-rail facility wins
construction funding despite doubts
By MATEUSZ PERKOWSKI
Capital Press
A planned truck-to-rail
facility aimed at improving
farm exports from Oregon’s
Willamette Valley has secured
permission to begin construc-
tion despite continued uncer-
tainties about its economic
viability.
The Oregon Transporta-
tion Commission has autho-
rized spending up to $25 mil-
lion to build the intermodal
facility in Millersburg, which
would allow direct rail ship-
ping of agricultural products
to ports along Washington’s
Puget Sound.
Straw, hay, seed and other
farm goods commonly travel
to Asian markets via con-
tainer terminals in Seattle and
Tacoma, but exporters in Ore-
gon complain that trucking to
those ports has grown more
expensive and less reliable.
The Millersburg inter-
modal project would provide
another shipping option.
“I feel good about the
long-term benefits to agricul-
ture in the region,” said Roger
Nyquist, chairman of the
Linn County Board of Com-
missioners, who supports the
project. “It will be good for
more than just ag, but that
alone makes it worth it.”
Weaver Seed of Oregon,
based in nearby Crabtree,
hires trucks to deliver more
than 100 containers a year
to the Puget Sound, which is
about 243 miles away, said
Gary Weaver, its owner. The
Millersburg facility would cut
that distance to 11 miles.
Intermodal yards already
exist in Portland, but the proj-
ect would let trucks offload
containers in the mid-Willa-
mette Valley instead of fight-
ing traffic in the state’s most
congested metropolitan area.
While state lawmakers
approved $25 million in grant
money for the intermodal
facility in 2017, the project
was delayed as transportation
officials tried to determine
whether it would be finan-
cially sustainable.
The state Department of
Transportation
ultimately
recommended full fund-
ing for the project, which
was recently unanimously
approved by OTC, even
though an independent eco-
nomic analysis has raised
doubts about its economic
feasibility.
In its most recent report on
the project, the Tioga Group
transportation consultancy
firm said the facility’s “suc-
cessful operation” depends
upon “a series of assump-
tions” that haven’t been
verified.
Specifically, Tioga Group
determined that ocean carriers
effectively subsidize existing
intermodal facilities in Port-
land by making shipping con-
tainers available at a reduced
price.
However, there is “no
confirmation” that any ocean
carriers will coordinate con-
tainer movements to and
from the Millersburg facility,
the analysis said. Their will-
ingness to participate in the
intermodal service depends
on a concept that “has not
yet been documented in any
detail.”
The project would need
help from ocean carriers to
be competitive with Portland
intermodal yards that effec-
tively offer “below cost”
container shipping, as well as
the “faster, more convenient
service” offered by trucks,
the report said.
ITS ConGlobal, the termi-
nal operator, and the Union
Pacific railroad would not be
participating in the project
if they didn’t think it would
work, Nyquist said.
Tens of thousands of
empty containers pass by
the Millersburg facility each
year, some of which could be
diverted to ship farm goods
to Asia through a container
“matchback” program offered
by Union Pacific, he said.
California dairy farmers will soon get a
chance to vote whether to keep the state’s
quota program or phase it out over the next
four years.
The state’s Secretary of Agriculture Karen
Ross on Monday ordered a referendum on a
petition to sunset the program.
The program, which assesses all Grade
A milk producers to pay a premium to quota
holders, has been a contentious battleground
since producers joined the federal milk mar-
keting order system in 2018.
The program is controversial to those
who don’t own quota or don’t own enough
quota to gain any benefit. But it is considered
a valuable asset by those who do, who say
they have either inherited it or invested in it
to augment their milk check, save for retire-
ment or remain competitive where expansion
isn’t possible.
The issue has divided family and friends
and led to the formation of United Dairy
Families of California, which has sought an
equitable resolution and unity in the industry.
That group held producer meetings to gain
consensus and, with three dairy cooperatives,
hired economists to analyze the situation and
identify options.
The process resulted in United Dairy Fam-
ilies’ petition to sunset the Quota Implemen-
tation Plan, which dairy producers approved
through a referendum in late 2017. Preserva-
tion of quota was critical in gaining the votes
needed to join the federal marketing system.
The petition seeks to sunset the program
effective March 1, 2025. It also seeks to
equalize regional quota adjusters for a quota
premium of $1.43 per hundredweight of milk
in all counties until the program ends.
United Dairy Families of California began
its efforts two years ago with a five-phased
plan to seek a solution to the conflict that was
going on in the industry, said Dino Giacoma-
zzi, one of the organizer of the group.
“Ultimately, what United Dairy Fam-
ilies of California was formed to do was to
find out what the industry wants to do about
quota,” he said.
The group wanted every dairy farmer to
have a voice in the decision, he said.
“The only way to do it was through a ref-
erendum, and that’s where we’re at now,” he
said.
He said it’s also important to know the
group doesn’t have a stake in the outcome of
the referendum.
“We are administering the process … we
are not here to tell people to vote. But we
believe it’s absolutely important every single
producer does vote so we know what produc-
ers want,” he said.
The quota program was instituted in
1969 to win support for a state marketing
order that pooled milk and distributed pay-
ments for milk across different utilizations
more equitably. It allowed producers with
existing Class I contracts to receive a higher
price for their milk than the market average,
or blend price.
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Inslee denies housing petition
By DON JENKINS
Capital Press
Washington Gov. Jay Inslee won’t repeal
emergency farmworker housing rules, lead-
ing two farm groups to contemplate suing.
The groups claim the rules could be revised
to benefit both employers and workers.
Inslee formally rejected a petition from
the Washington Farm Bureau and labor sup-
plier WAFLA asking for new COVID-re-
lated rules.
The emergency rules, set in May, are still
necessary, according to Inslee, who said
farmworkers living together are particularly
vulnerable to the coronavirus.
“I am unaware of evidence demonstrating
that the risk of COVID transmission in agri-
cultural settings will dissipate before wide-
spread vaccinations,” Inslee stated in a letter
to the farm groups.
The emergency rules reduced the num-
ber of workers that could live and travel
together. The Farm Bureau and WAFLA
argue the state should have made a more
careful review by now and come up with
rules that take into account the possibility
that workers will be vaccinated by spring.
The state Department of Labor and
Industries announced in September that it
was working on permanent rules, but has not
proposed any or offered any timeline for a
proposal.
“How could you not write rules in nine
months?” Farm Bureau CEO John Stuhl-
miller asked Jan. 22. “Government is sup-
posed to be able to be thoughtful in advance.”
The groups will likely sue, Stuhlmiller
said. “The only option left is to challenge it
legally,” he said.
WAFLA executive director Dan Fazio
said he was disappointed but not surprised
by the denial.
Farms are prepared to test workers, but
need help isolating them from outside con-
tact until vaccinations are available, Fazio
said.
The current emergency housing rules
allow community organizers to visit farm-
worker housing. Farms can’t quarantine
workers until one shows COVID symptoms.
The risk of infection will increase as
guestworkers arrive in Washington, Fazio
said.
“Workers are going to get here and very
likely are going to go visit friends and rela-
tives, where people maybe aren’t following
the rules,” Fazio said.
“This is very serious,” he said. “We need
support on this. I don’t want to be here on
Feb. 15 telling the governor, ‘I told you so.’”
The Inslee administration recently made
all farmworkers, not just those older than
50, eligible for vaccinations when the state
moves into the next stage of a multi-phase
inoculation plan.
The move put farmworkers in the same
phase as firefighters, police officers, teachers
and other workers deemed “essential” and
who have extensive contact with co-work-
ers or customers.
Still, vaccinations for farmworkers
appear to be at least several weeks away,
maybe months.
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