California closes Jim Crow-era loophole that’s still punishing farmworkers today

Farmworkers in the California legislature showing support for the overtime bill. CREDIT: AP Photo/Rich Pedroncelli
Farmworkers in the California legislature showing support for the overtime bill. CREDIT: AP Photo/Rich Pedroncelli

When the federal law that mandates employers pay their workers at least the minimum wage and overtime pay if they work more than 40 hours a week was first passed in the 1930s, it incorporated huge carveouts for black workers to help secure support from Democrats in the Jim Crow South. This week, California lawmakers took a step toward eradicating one of those carveouts.

Across the country, agricultural workers are required to be paid the minimum wage, but there is no upper limit on how long they work. Unlike those in other hourly jobs, if farmers work more than 40 hours a week they are not guaranteed any overtime pay.

A bill in California would change that. On Monday, state lawmakers passed a law that would give the state’s 825,000-plus farmworkers overtime protection, requiring them to be paid more for extra hours like all other workers.

The bill now heads to Gov. Jerry Brown’s (D) desk, where he must decide whether to sign or veto it. He hasn’t publicly indicated his decision yet, but if he signs it, California — the country’s largest agricultural producer — would become the first state to enact such a requirement.

The bill would introduce overtime pay gradually starting in 2019, eventually requiring time-and-a-half overtime pay for more than eight hours worked in a day or 40 worked in a week by 2022. Workers who put in more than 12 hours a day would be owed double pay. Under current state law, farmworkers are only owed overtime pay for working more than 10 hours a day or 60 hours a week, much longer than for all other workers.

Hundreds of agricultural workers were on hand for the vote to, in the words of United Farm Workers of America president Arturo Rodriguez, “be able to witness history.”

Lawmakers who supported the bill saw it the same way. Assemblyman Tony Thurmond (D) said they had the chance “to make history today — history that has been 80 years in the making.”

“History that has been 80 years in the making.”

The history does in fact go back nearly eight decades. When the Fair Labor Standards Act (FLSA) was passed in 1938, creating the minimum wage and overtime regulations for the first time, it was only with the support of Southern Democrats. According to the book When Affirmative Action was White, they traded their votes for broad exemptions that would keep Jim Crow practices intact: excluding farmworkers, maids, and domestic workers, professions with the largest shares of black workers at the time.

As Florida Rep. James Mark Wilcox put it during the debate over the FLSA, “There has always been a difference in the wage scale of white and colored labor… [S]uch a plan might work in some sections of the United States but those of us who know the true situation know that it just will not work in the South. You cannot put the Negro and the white man on the same basis and get away with it.”

Other Southern lawmakers similarly rejected the FLSA explicitly because it would level wages between white and black workers. South Carolina’s Ed Smith remarked, “[T]he main object of this bill is, by human legislation, to overcome the great gift of God to the South.”

Even President Franklin D. Roosevelt, who pushed for the FLSA and signed it into law, said, “No law ever suggested intended a minimum wages and hours bill to apply to domestic help.”

By excluding farm workers and domestic employees, about two-thirds of all black people were denied FLSA protections, leaving them without any guarantee of a minimum wage or extra pay for working extra hours. Huge shares of Latino, Asian-American, and Native American workers were also left out.

Some of those carveouts, as for agricultural workers, still exist today, while others have only recently been done away with. Congress passed a law in 1966 that extended minimum wage protection to farmworkers. In 1974, the FLSA was expanded to cover domestic workers, but it left out home health aides — those who care for the elderly or disabled in their homes — until a rule change that was put forward in 2013 and finalized just last year.

UPDATE: Gov. Jerry Brown signed the bill into law on September 12, making California the first state to ensure the same overtime protections for farmworkers as other workers enjoy.