Toby buffer - summer hideout (97° today.) My fleet is thin, with Sunchaser, Cressida, and Subie out for repairs or upgrades, and Vespa down for the count (for now) So Oppo gets a law post. I apologize in advance with cuteness.

Wage and hour rules are set by both state and federal law. California has the Labor Code and 17 Wage Orders. Federal law has the Fair Labor Standards Act (FLSA), and the Department of Labor (DOL) regulations.


California’s Wage Order 14 covers field agriculture, and provides for time and a half after 10 hours in a day, with some additional overtime for the 7th consecutive day of work in a workeek. Field agriculture (“primary ag”), like cultivation and harvesting, is exempt from the FLSA, which requires time and half after 40 hours in a week. For packing and processing (“secondary ag”) is exempt only when performed “on a farm by a farmer.” This can get very complex and fact-specific.

By the way, NLRA jurisdiction does not cover agriculture as defined by the FLSA , which is why most farmworkers nationwide have no right to bargain collectively or even to organize themselves. California has the Agricultural Labor Relations Board (ALRB) whose jurisdiction begins where the NLRB’s ends.

I am one of the few attorneys who practices both employment law (with a lot of wage and hour), and traditional labor relations law (union stuff), and one of fewer still who do so in agriculture. So I have lived inside of these issues more than most. For the first 10 years of my career, I dealt with a lot of ALRB jurisdictional issues where I had to know this inside and out, but it hasn’t been much of an issue recently...until now.


I have a case in mediation tomorrow where this issue is the centerpiece. My client is a chopping company - they mechanically harvest feed crops like corn silage and alfalfa for dairy farmers. This is primary ag- the only rule for overtime is California law, which is the 10 hour day. My clients paid that.

Plaintiff is seeking FLSA overtime, and this is exempt primary ag. I can’t figure out if they know this or not, or whether they think they have some clever argument. But their case is shit. The more I think about it, this thing should not settle for much money, which means it probably won’t settle at all.

My first mediation since my heart attack, so I have to try my new, calmer approach. Wish me luck, Oppo. I feel like an aging pitcher who has to get craftier instead of just overpowering them with the fastball.