- Associated Press - Friday, July 17, 2015

SEATTLE (AP) - In a story July 16 about a Washington Supreme Court decision concerning farm workers’ rest break pay, The Associated Press reported erroneously the identity of the general counsel of the Western Growers Association. He is Jason Resnick, not Jeff.

A corrected version of the story is below:

High court: Washington farmworkers entitled to break pay

Court: Washington farmworkers paid by how much they pick are entitled to separate rest pay

By GENE JOHNSON

Associated Press

SEATTLE (AP) - Farmworkers who are paid by how much they pick are entitled to separate, additional pay for their rest breaks, the Washington Supreme Court said Thursday in a unanimous opinion that could have major implications for the state’s agriculture industry - as well as other businesses where workers are paid by task rather than by time.

But it’s unclear whether the ruling will actually result in the workers being paid more, or whether companies will simply restructure the way they pay.

“Paid breaks for workers are a basic principle embodied in state law, and this decision ensures that some agricultural workers, who often perform difficult work for low pay, aren’t denied this right arbitrarily, based solely on their compensation method,” said Washington Attorney General Bob Ferguson, whose office supported the pickers.

The decision came in a case involving Sakuma Brothers Farms, a berry farm in Skagit County, north of Seattle. Some of the farm’s pickers - seasonal, migrant workers, mainly from Mexico - filed a federal class-action lawsuit in 2013, saying they were entitled to paid rest breaks under state law.

Sakuma Brothers agreed to pay the 900 workers and their lawyers $850,000 to settle the claims of unpaid back wages for rest breaks, but it denied further liability. The company said it agrees that workers are entitled to paid rest breaks - 10 minutes every four hours - but it said the amount it paid the pickers was inflated to already include compensation for rest breaks.

The federal court asked the state Supreme Court to weigh in, and the justices said Sakuma’s practice, which it has since abandoned, wasn’t good enough. Because workers were paid by how much they pick, they could make more money by working through their rest breaks, which can be bad for their health, Justice Mary Yu wrote for the court.

“The current piece rate scheme encourages employees to ‘work harder’ by skipping breaks,” Yu wrote. “That result … effectively decreases the frequency of employees’ rest periods; it incentivizes Sakuma to employ fewer employees; and it fosters a culture of working through rest breaks.”

Some employment lawyers suggested the ruling could apply not just to farmworkers, but others paid on a “piece-rate” basis, such as janitors or hotel housekeepers paid by the floor or the room they clean. A California appeals court made a similar ruling two years ago in a case involving grocery store truck drivers paid by the mile, rather than by the hour. That decision is being appealed.

The Washington justices also made clear that companies must pay the workers the rate they make when they’re picking, rather than simply paying them the minimum wage during rest breaks.

Dan Ford, a lawyer with Columbia Legal Services who represents the pickers, said there are an estimated 200,000 seasonal farmworkers in Washington.

“Being paid for breaks is critical for the compensation farmworkers should receive,” he said. “If breaks are not properly compensated, then workers are in the position of losing wages, or losing breaks.”

Ford said he expected some pickers might bring lawsuits similar to the one Sakuma’s employees brought, seeking additional pay for past rest breaks.

In an emailed statement, Sakuma Brothers noted that it no longer pays workers strictly by how much they pick. Instead, it’s paying $10 an hour plus a bonus of up to $30 per hour based on the number of pounds picked. Under the system, the company’s blackberry pickers have been making more than $20 per hour on average, it said.

“Today’s decision by the Washington State Supreme Court confirms that our current, active pay system goes above and beyond industry standards and is one of the most progressive in the state, if not the country,” said Sakuma Chief Executive Danny Weeden said.

Jason Resnick, general counsel at the Irvine, California-based Western Growers Association, said he expects other agricultural companies in Washington to adopt similar pay structures.

“Agricultural employers who have been paying by piece-rate for decades are now informed that they’ve been doing it wrong all along,” Resnick said. “This really changes the way agricultural employers are going to pay their workers.”

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Follow Johnson at https://twitter.com/GeneAPseattle

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