Yet agriculture employees are still exempt from FLSA protections
In a recent industry overtime study published by TSheets by QuickBooks, we learned that many workers around the country are putting in long days. In the last year, 28% of events managers recorded an average of 52.7 hours per week, while 33% of developers and IT professionals recorded 47.4 hours on the clock each week. It seems that even among those with nothing else in common, one similarity remains: Workers of all jobs, backgrounds, salaries, and skillsets are burning the midnight oil to get the job done.
As a time tracking company, TSheets is in a unique position to track and study employee hours. And given that time tracking is so closely linked to labor law compliance and payroll, we’ve also taken an interest in overtime compensation across industries. In the past, we’ve interviewed labor specialists to better understand Fair Labor Standards Act (FLSA) regulations and created resources around state overtime laws.
From an overtime and compliance perspective, one part of our industry overtime study stood out: Among those industries recording the most overtime, many are exempt from earning time and a half. We took a closer look at where those exemptions originated and if such exemptions are outdated by today’s modern labor standards.
Who’s tracking the most overtime by industry?
Among the industries analyzed, manufacturing, construction, agriculture (including forestry and hunting), and transportation clocked the most hours.
In the last year:
- People who tracked time in the manufacturing sector worked an average of 37.5 hours per week, while 49% tracked overtime.
- Construction workers put in an average of 38.9 hours each week, with 50% working overtime.
- People in agriculture, forestry, and hunting worked an average of 40.8 hours per week, and 53% of those who tracked time recorded overtime hours.
- 54% of those in the transportation sector recorded overtime hours, and the average number of hours worked in a week was 41.3.
But knowing that 54% of people who work in transportation recorded overtime hours in the last year isn’t the only important stat. Among those who had overtime, the average number of overtime hours worked per week between 2018 and 2019 was 14.5. That’s up from 12.8 hours, the average number of overtime hours recorded each week between 2013-2018 for that industry.
Agriculture, forestry, and hunting also showed an extraordinary number of overtime hours per week. Remember that 53% of people in that industry who tracked overtime between 2018 and 2019? Their average number of overtime hours was 15.1 per week, adding up to 55.1 working hours.
Yet despite their overly long shifts, employees in some of these industries aren’t guaranteed any additional compensation for their overtime hours.
Which industries are exempt under the FLSA?
Signed by President Franklin D. Roosevelt in 1938, the FLSA sets federal laws and labor standards regarding child labor, minimum wage, overtime pay, and more. But not every industry falls under the umbrella of the FLSA’s protections. Even when it was first introduced, the law only applied to a fifth of the labor force. Several industries are still exempt today, meaning some or all of the protections set down by FLSA may not apply.
Some of these exempt industries include:
- Drivers and drivers’ helpers
- Forestry employees of small firms
- Buyers of agricultural products
- Fruit and vegetable transportation employees
- Railroad employees
- Employees working in national parks or forests
Notice something about that group? While transportation, agriculture, forestry, and hunting workers, according to the TSheets study, are working 14 or more hours of overtime each week, under the FLSA many such workers need not be paid time and a half for any of those additional hours. And because the FLSA does more than regulate overtime, workers in exempt industries lose out on other protections as well.
Are industry exemptions outdated by today’s modern labor standards?
Who should be allowed to work? When should they work? How much should they be paid? These are the questions America has been chewing on for hundreds of years, and while many laws exist today to protect workers’ rights, those standards were hard-won.
According to Walter Trattner, author of “Crusade for the Children,” 18% of children aged 10 to 15 were employed nationwide in 1910. Child labor was particularly common in the South, where children younger than 14 worked as cotton pickers and spinners. A 1905 effort to limit child labor and keep those under the age of 14 from working at night was defeated by cotton mill operatives in North Carolina, because “75% of spinners in the state were under 14,” and farmers were afraid of how such a law might impact profits.
Today, most Americans vastly underestimate the number of child laborers worldwide, and many would be willing to put their money where their moral compass is and pay more for goods not produced by children. Yet, while perspectives on child labor have shifted, calls for improved labor standards among industries exempt from the FLSA, including agriculture, have been met with controversy.
Recently, California became the first state to require farmworkers be paid overtime for any hours worked above 40 in a day (on any farm employing more than 25 people). And in July 2019, New York passed a law allowing farmworkers to unionize, paving the way for more rigorous labor standards in the future.
The New York Farm Bureau opposes such measures, saying paying farm laborers time and a half for any hours above eight in a day or 40 in a week would have expensive consequences. The group cites a 2019 Farm Credit East study to support their position. The study estimates mandatory overtime pay combined with minimum wage increases could raise New York’s agricultural labor costs by $299 million.
President of the New York Farm Bureau, David Fisher, said, “We understand supporters of this bill mean well. We also mean well. We greatly appreciate the contributions our farmworkers make to our farms and our food supply, but these numbers demonstrate that it will be incredibly difficult for farms to meet the proposed labor mandates. It would be difficult for farms to compete in the marketplace when they can’t control their prices and must take what the markets demand.”
What happens when employees in agriculture are exempt?
A little over 80 years ago, rural farmworkers were excluded from the discussions that led to the passage of the FLSA and the National Labor Relations Act of 1938. More than 80 years later, we’re still seeing the results of that exclusion.
Today, hundreds of farmworkers die from farm-related injuries each year, according to the Centers for Disease Control and Prevention. In 2014 alone, around 12,000 youth were injured on farms, and 4,000 of those injuries were due to farm work. It’s worth noting that agriculture is one of the only industries where child labor is still accepted and legal.
“Since 2003, the majority of work-related child fatalities were in agriculture…Although agriculture employs a small percentage of working children, DOL data indicate that from 2003 to 2016…over half of the 452 work-related fatalities among children were in agriculture,” according to a 2018 report from the United States Government Accountability Office.
Physical injury aside, farm laborers struggle economically as well. At least 33% of all farmworkers had a family income below the federal poverty level from 2015 to 2016.
“The entire agricultural industry’s greatest subsidy is the lack of protection for agricultural workers … The system was dependent on the exploitation of slaves. That legacy carries through and directly affects farmworkers,” said Margaret Gray, author of “Labor and the Locavore: The Making of a Comprehensive Food Ethic,” in a 2016 PBS interview.
So where does that leave us today?
The president of the New York Farm Bureau isn’t wrong. For any worker to make a liveable wage, receive benefits, or earn time and a half for their 15 extra hours, sacrifices must be made by the business owner. There’s no answer that can make everyone happy.
Truly, no one fact or figure can tell the whole story, and change is never easy. But if sunny skies lay ahead for farm owners, the moment is ripe for re-evaluating those historical exclusions once deemed necessary. If ever there were a time to reconsider FLSA exemptions for workers in agriculture and transportation, it’s now.