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Friday, May 28, 2021
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Opinion
Editor & Publisher
Managing Editor
Joe Beach
Carl Sampson
opinions@capitalpress.com | CapitalPress.com/opinion
Our View
Irrigators must not turn to violence, intimidation
T
hough a few weeks have
passed since the Bureau of
Reclamation announced it
would not this season divert irriga-
tion water to the Klamath Project, we
are sure that the emotions of produc-
ers, farmworkers and their families
are still raw.
The bureau shut down the Project’s
A Canal for the entire irrigation sea-
son May 12 in response to worsening
drought conditions — allotting zero
surface water from Upper Klamath
Lake for thirsty crops and livestock.
It is the first time in more than a
century the A Canal will deliver no
water to irrigators, using that water
instead to serve protected species.
The decision means that more
than 150,000 acres of farmland will
receive zero irrigation water this sea-
son. The impact will be devastating,
not only to the farm community but to
the region’s economy at-large.
Lee Juillerat/For the Capital Press
A tractor with a message during a
peaceful demonstration last year over
the availability of water for Klamath
Project irrigators.
Farmers are understandably on
edge. A gut punch like that takes the
wind out of everyone.
Many who we spoke to last week
expressed equal parts of outrage
and despair. Some hope to hang on
another year, others just don’t see that
as possible. But it is still early days
and it will take time for everyone to
fully process the news and objectively
assess their situations.
What can be done?
Members of Congress and senators
representing Oregon and California
are working on a relief package. Irri-
gators could take the bureau to court,
though prospects of success are slim.
Protests are planned.
None of these things will produce
immediate relief, or perhaps the sat-
isfactory result that many would like.
But, they are a start.
There are things that will only
make the situation worse for irriga-
tors, the community and misguided
individuals who take inappropriate
actions.
Peaceful protestors last week
demanded that the Klamath Irrigation
District defy the bureau and charge
the canal. District officials declined,
citing the legal ramifications of forci-
bly opening federal headgates.
Last week it came to light that
someone had put the names and
addresses of bureau employees on
social media and had urged people to
subject them to public intimidation
for carrying out their duty. There are
also concerns that less savory, outside
elements will be recruited this sum-
mer to cause trouble during planned
demonstrations.
Leaders of the Klamath Water
Users Association, which represents
irrigation districts served by the proj-
ect, were quick to rebuke rogue
elements.
“The personal health and safety of
every individual and their families
is paramount,” said Klamath Water
Users Association Vice President Ry
Kliewer. “I will protest, I will demon-
strate, but I will be peaceful. And I
will respect others the way I expect
them to respect me and my family.”
The rage and desperation that farm-
ers are feeling are understandable, but
irrigators must put their faith in the
political and legal systems. Violence
and intimidation are not the answer.
Implications of ESSB
5172 and overtime
pay for ag workers
Our View
L
Courtesy of Citizens for Greater Idaho
Counties that have voted in favor of the Greater Idaho movement.
A message in a ballot
T
he good people of Eastern Oregon sent a
message last week to politicians and others
in Portland and the rest of Western Oregon.
The short version: They want out — out of the
state and away from its Portland-centric politics.
Voters in five Eastern Oregon counties passed
measures that will require their county courts and
commissioners to consider unhitching from West-
ern Oregon’s circus wagon and joining Idaho.
Two other counties have already passed similar
measures.
Called Greater Idaho, the movement is a rejec-
tion of the dominance asserted by Portland and its
crowd of political and environmental activists. Sup-
porters say they would rather be a part of Idaho,
which is more oriented toward agriculture and rural
values.
Portlanders have only themselves to blame for
this. Many actively work against the interests of
rural Oregon. They think some dairy farms are too
big and should be banned. They put the well-being
of fish above all else. And they think it’s wrong to
harvest trees, which is ironic since the timber indus-
try originally helped build Oregon’s economy.
The economy of Eastern Oregon — and much
of the rest of the state — has suffered mightily
because of cutbacks in logging. Not only have envi-
ronmentalists sued to stop forest treatments that
would help prevent wildfires, they have sued to
stop salvage logging after wildfires. The damage
to the rural economies has been so great that each
year Congress has had to send checks to many rural
counties just to keep the lights on.
Through these and other efforts such as trying
to ban certain types of fuel and increasing the min-
imum wage, Portlanders and others have inflicted
profound damage on the economy of Eastern
Oregon.
Still another example is a ballot initiative that
would shut down animal agriculture in Oregon.
What person would want to destroy the dairy and
livestock industries, major parts of Eastern Ore-
gon’s economy? What person would think he has
the right to do that? Is it a coincidence that the mea-
sure comes out of Portland?
Western Oregon-based environmental groups
also want to turn massive swaths of rural Oregon
into a national monument and “protect” thousands
of miles of rivers from, apparently, anything and
everything.
In the process, they have run over Eastern Ore-
gonians, many of whom have lived there for
generations.
That’s why many folks in rural Oregon say they
want out. They believe their voices are more likely
to be heard in Boise, which is an hour’s drive away,
than in Salem, which is a seven-hour drive away.
Instead of talking about — and listening to —
diverse ideas, politicians in Salem count votes to
see what they can push through. When the steam-
roller gets going in the state Capitol, the only way
to stop it is for rural legislators to walk out in an
effort to deny a quorum.
These foibles are not the problem. They are
symptoms of the problem. When people sit around
talking about how “other people” should live or
work, that’s a problem, particularly when many
Western Oregonians appear to know so little about
rural Oregon.
That’s why the idea of leaving Oregon is attrac-
tive to so many who live east of the Cascade
Range.
We don’t know what the odds of Greater Ida-
ho’s success are. At the very least, two state legisla-
tures and Congress would have to approve it — and
that’s after it’s been approved by the voters and all
the many details have been worked out.
But we do know this: Rural Oregonians are tired
of being second-class citizens whose jobs are taken
away and whose lifestyles are damaged by thought-
less activists on the west side of the Cascades.
ast year, Washing-
ton’s Supreme Court
disrupted the state’s
agricultural industry when
it held that the agricultural
overtime exemption vio-
lated the state’s constitution
as applied to dairy work-
ers. As a result, all dairy
employers immediately had
to start paying their work-
ers overtime at a rate of 1.5
times their regular hourly
rate.
While not explic-
itly addressed, the Mar-
tinez-Cuevas v. DeRuy-
ter Brothers Dairy decision
raised significant concerns
throughout the agricul-
tural industry regarding (1)
whether the decision would
be applied to all agricul-
tural employers, not just
dairy employers, and (2)
whether the decision would
be applied retroactively.
Shortly after the
Supreme Court’s decision,
approximately 30 putative
class action claims were
filed against dairy employ-
ers seeking retroactive
application of the decision
and three years of unpaid
overtime. The potential
financial consequences of
these claims to many dairy
employers were staggering.
Recently, the Washington
legislature addressed both
unanswered questions from
the Martinez-Cuevas deci-
sion in ESSB 5172, which
is currently on the gover-
nor’s desk for signature.
Sunset for ag overtime
exemption
In December, the orig-
inal agricultural overtime
exemption will expire. In its
place, the legislature built in
a phased scale for payments
of overtime to agricultural
workers. On Jan. 1, 2022,
agricultural employees will
be entitled to overtime for
all hours worked more than
55 per week. As of Jan. 1,
2023, they will be entitled
to overtime for all hours
worked more than 48 per
week. By Jan. 1, 2024, all
agricultural employees shall
be entitled to receive over-
time for all hours worked
more than 40 per week.
California has a similar
phased approach, although
employer size is also con-
sidered. The Oregon legisla-
ture is considering a bill that
would eliminate its agricul-
tural overtime exemption.
Further, Congress is consid-
ering similar legislation at
the federal level.
Agricultural employers
protected
With one very specific
and narrow exception, all
GUEST
VIEW
Stephanie
Berntsen
agricultural employers,
including dairy employers,
will not be subject to dam-
ages, penalties, attorneys’
fees, costs, or other relief
from employees seeking
unpaid overtime.
In other words, dairy
employers who were either
sued or threatened with
putative class action law-
suits for three years of
unpaid overtime wages will
not be liable for any dam-
ages or attorneys’ fees for
paying their employees as
required by law as it existed
until Nov. 4, 2020. This
exclusion does not apply
to the parties in the Mar-
tinez-Cuevas v. DeRuyter
Bros. Dairy case.
ESSB 5172 represents a
compromise bill that brings
much needed certainty to
these significant unset-
tled issues. Unlike dairy
employers, the balance of
Washington agricultural
employers has some time to
prepare for the changes to
overtime pay requirements.
Here are some suggestions:
• Review hours worked
and consider whether
adjustments need to be
made. For example, hire
additional workers or invest
in technology to increase
worker efficiency.
• Have a realistic plan
for how to manage overtime
and prepare a policy consis-
tent with that plan.
• Train managers and
supervisors on overtime
issues for consistent and fair
implementation.
• Review piece rate or
flat rate work calculations to
ensure they include pay for
all rest breaks, non-produc-
tive time, and any overtime
that may be required.
• To the extent applica-
ble, review the job duties
and functions of any indi-
viduals in positions classi-
fied as exempt from over-
time under the executive,
administrative, or profes-
sional exemptions.
Stephanie Berntsen is a
shareholder with Schwabe,
Williamson & Wyatt. She
is part of the firm’s Real
Estate and Construc-
tion and Transportation,
Ports and Maritime indus-
try group. She provides
proactive, common-sense
legal advice on employ-
ment issues for companies
operating in the Pacific
Northwest.