Worker’s rights attorneys could learn from advocates in Washington state. In November, the Washington State Supreme Court decided Martinez-Cuevas v. Deruyter Brothers Dairy. [1] Washington, like most states, did not recognize overtime pay for agricultural workers. Defendants argued that because farming is seasonal and because “weather, crop growth, commodity market prices, and husbandry” make farming subject to rapid change, that such work is unsuitable for overtime work under the Minimum Wage Act. [2] The plaintiff-class of dairy workers, led by Jose Martinez-Cuevas and Patricia Aguilar, sought to invalidate the overtime exemption for agricultural workers—and won. Washington is now the first state to recognize overtime for agricultural workers in the courts. [3] Advocates framed their argument not just in labor law, but in racial justice and constitutional law. They argued that the overtime exemption for agricultural workers was “racially motivated to impact the Latinx population, which constitutes nearly 100 percent of Washington dairy workers.” [4] The court found the exemption unconstitutional.
The Martinez-Cuevas majority explains that its departure from federal construction of privileges and immunities is because, quite simply, the federal construction is wrong. [5] In its interpretation of Washington’s Constitution, the Court noted that agricultural employers were granted a privilege or immunity from providing overtime protections to their employees that was not granted to others, unmistakably a violation of the state’s more negative-language version of the clause. Even other seasonal workers, the Court noted, such as retail workers during the holidays, are entitled to overtime pay, making the exemption for agricultural workers even more suspect.
Advocates’ framing of their argument is most apparent in now-Chief Justice Steve González’s concurrence. Columbia Legal Services, who represented the plaintiffs, took a historical view in the complaint. Rather than just challenging the current discriminatory impact of the laws, the attorneys pointed at the racially motivated underpinnings of the exclusionary policies under the National Labor Relations Act of 1935 (NLRA), [6] Fair Labor Standards Act of 1938 (FLSA), [7] and Social Security Act of 1935 [8], all of which were capitulations to Southern Democrats. [9] Justice González latched onto the history, explaining that the Southern Democrats wanted to “preserve a quasi-captive, nonwhite labor force and perpetuate the racial hierarchy in the South by excluding agricultural workers.” [10]
The dissent argues that even if the state law was modeled off federal laws, which were racist, that the same could not be true of the state law. But the Majority’s historical views directly rejects this proposition, showing that not only is there a disproportionate impact on Latinx workers in the state, but a history of intentional discrimination. This showing provided more than informative context because demonstrating the history of intentional discrimination triggered a higher stander of review. Justice González raised the level of scrutiny to intermediate because the exemption was a law “that single[d] out politically powerless and marginalized groups for differential treatment with respect to important rights.” [11]
At least two lessons can be taken from this success: relying on state law can be more effective than federal law; and historical context is necessary. Statutes do not exist in a vacuum. Tracking where they originated sheds light on what practices should be questioned and challenged—and may even increase the likelihood of success.
* Anita Yandle, Columbia Law School, J.D. Candidate 2021
[1] Martinez-Cuevas v. DeRuyter Bros. Dairy, Inc., 475 P.3d 164 (Wash. 2020).
[2] Id. at 173.
[3] New York, Minnesota, and Maryland have varying levels of overtime protections for farmworkers, and California is in the process of implementing some. Gene Johnson, Washington Supreme Court: Farmworkers to Get Overtime Pay, ASSOCIATED PRESS (Nov. 5, 2020), https://apnews.com/article/washington-agriculture-d4d155379061da6798e1790342093ed4#:~:text=The%20decision%20makes%20Washington%20the,60%20hours%20in%20a%20week.
[4] This statistic was undisputed by the parties. Martinez-Cuevas, 475 P.3d at 168.
[5] Id. at 170 (“Rather, we depart from the federal construction because it grew from an incorrectly decided Slaughter-House decision that radically changed the intent of the Fourteenth Amendment away from that of the provision’s congressional authors”) (interpreting the ordinary meaning of a constitutional provision at the time of drafting also includes examining the provision’s historical context).
[6] 29 U.S.C. §§ 151–169.
[7] 29 U.S.C. § 203
[8] 42 U.S.C. ch.7
[9] See, e.g. Brief for The Farmworker Justice Project & Professor Marc Linder, Martinez-Cuevas v. DeRuyter Bros. Dairy, Inc., 475 P.3d 164 (Wash. 2020), available at https://columbialegal.org/wp-content/uploads/2019/09/Martinez-Cuevas-v.-Deruyter-Brothers-Dairy-FJP-Marc-Linder-Amici.pdf; Marc Linder, Farm Workers and the Fair Labor Standards Act: Racial Discrimination in the New Deal, 65 TEX. L. REV. 1335 (1987).
[10] Martinez-Cuevas, 475 P.3d at 176.
[11] The dissent used rational basis and the majority used “reasonable grounds,” which is slightly higher than rational basis. Id. at 171, 173; Id. at 184 (Stephens, C.J., dissenting).