Country Life
Dairy • A13 Gardening • A14
Wednesday, November 11, 2020 • lyndentribune.com • ferndalerecord.com
Attorneys sort out full impact of overtime ruling State Supreme Court decided 5-4 against DeRuyter dairy farm of Yakima By Calvin Bratt editor@lyndentribune.com
WHATCOM — Attorneys are looking over what should be next steps after a ruling by the Washington State Supreme Court regarding overtime pay at a Yakima County dairy farm. The Washington State Dairy Federation characterized the court’s 5-4 ruling as “disappointing” in a Nov. 5 press release. The decision goes against the state’s — and nation’s — traditional exemption from paying farmworkers time-and-a-half for overtime, the federation says. “While we believe the court erred in its opinion, this case involves a state constitutional question, and there is no venue to appeal it beyond the state Supreme Court,” the federation said. Attorneys for agricultural employers are reviewing the decision, whether and how it applies to all of agriculture. “We are contemplating the next steps necessary and best practices that should be used in light of this ruling,” the federation said. “The most likely advice is for farmers to begin paying workers time-anda-half for overtime immediately.” The essence of the ruling is that farmworkers are entitled to overtime pay,
Agricultural labor in Whatcom County can be in both berry harvesting and processing as well as on dairy farms. eliminating a decades-old exemption for agriculture from the state’s minimumwage law, the Capital Press regional agricultural weekly reported. The ruling makes Washington the second state in the U.S. — after California, effective in 2025 — to grant farmworkers time-and-a-half pay for hours worked beyond 40 in
a week, the Capital Press reported. The ruling arises from the suit Martinez-Cuevas and Aguilar v. DeRuyter Brothers Dairy, brought by two former milkers at the Yakima County dairy. This is the Press’s account: The workers’ attorneys said denying them overtime pay violated the state
constitution’s mandate to protect workers in hazardous occupations. Writing for the court majority in agreement, Justice Barbara Madson called working on a dairy “extremely dangerous.” Justices Steven Gonzalez, Sheryl Gordon McCloud, Mary Yu and Charles Wiggins joined in the majority opinion.
In a separate concurring opinion, Gonzalez said he would look favorably on applying the decision retroactively, allowing farmworkers to sue for back pay. However, that issue was not in front of the court in this case. In a dissenting opinion, Justice Debra Stephens said overtime pay for some workers was granted by the
(Tribune file photo)
Legislature and was not a fundamental right for all. She also said it would be unfair to farmers to apply the decision retroactively. “Farm employers should not bear the overwhelming risk of financial devastation because they paid what the law required of them at the time,” she See Overtime on A14
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Wednesday, November 11, 2020 • lyndentribune.com • A13
MIELKE MARKET
Milk price jumps to $21.61, for now
The October Federal Order Class III benchmark milk price vaulted $5.18 to $21.61 per hundredweight (cwt.), the highest October price since 2014 — with a little more to come, thanks in large part to Uncle Sam’s Farmers to Families Food Box program. The November Class III futures contract settled Friday, Nov. 6, even higher at $23.20, but then December fell to $18.70 and January 2021 was at $17.25 per cwt. The October Class IV price is $13.47 per cwt., up 72 cents from September but $2.92 below a year ago. The Class III price peaked at $24.54 in July and slipped in August and September, only to shoot higher in October. And, as I have pointed out the past few months in this column, the quirks of U.S. milk pricing tend to lower the prices that farmers actually receive. Moreover, adding insult to injury, feed prices have crept higher. The latest drop in the U.S. All Milk Price, plus sharply higher corn and soybean prices, dragged the September milk-feed price ratio to the lowest level since May. The latest Ag Prices Report has the ratio at 2.28, down from 2.50 in August and from 2.34 in September 2019. The All-Milk Price aver-
By Lee Mielke aged $17.90 per cwt., down 90 cents from August and $1.40 below September 2019. The national average corn price averaged $3.41 per bushel, up 29 cents per bushel from August but 39 cents below September 2019. Soybeans averaged $9.24 per bushel, up 58 cents from August and 89 cents above a year ago. Alfalfa hay averaged $171 per ton, down $1 from August and $8 per ton below a year ago. The September cull price for beef and dairy combined averaged $66.60 per cwt., down $4.10 from August, $1.00 above September
2019, but $5 below the 2011 base average of $71.60 per cwt. Milk cow replacements averaged $1,340 per head in October, up $30 per head from July and $30 above October 2019. The loud crash you heard the first week of November was cheddar block cheese plunging 44 cents, to a Friday close of $2.3425 per pound, ending five consecutive weeks of gain. But the price was still 32.75 cents above a year ago. The barrels rolled from their new record high set Oct. 30 at $2.53 per pound to a $2.3175 Friday close, down 21.25 cents on the week and ending seven weeks of gains. The price is 1.25 cents below a year ago, but a more typical 2.50 cents below the blocks. Midwest cheese producers reported changes in production levels to Dairy Market News, as some were seeking less milk and limiting production. Customers were buying hand-to-mouth. With prices as high as they were, no one wanted to be holding extra stocks, anticipating price declines. Western retail cheese demand has remained strong, but while government purchases and fastfood outlets are moving good volumes of cheese, food service is generally underperforming. Export sales
have also receded, due to the higher prices. Parts of the nation face increasing COVID cases, so marketers are concerned about further restrictions that could hamper recovery of the food service sector. Butter closed Nov. 6 at $1.43, up 4 cents on the week although 60.75 cents below a year ago. Butter makers say inventory is moving and churning remains busy. Retail demand has increased seasonally, but food service is unlikely to return to “normal” anytime soon. The Western butter supply is more than adequate and reflects a somewhat unstable market undertone. Grade A nonfat dry milk finished the week 4.25 cents lower, closing at $1.0650 per pound, 14 cents below a year ago. Dry whey climbed to a finish of 42.25 cents per pound, highest since January 2019, up 2.25 cents on the week and 14.75 cents above a year ago. The first Global Dairy Trade auction of November reversed direction, after three consecutive gains, and saw its weighted average drop 2.0%. However, on a brighter note, U.S. dairy exports topped year-ago levels for the 13th consecutive month in September. Cheese exports hit 62.7
You can still register for Dec. 1-4 small fruit conference WHATCOM — There is still time to register for the Washington Small Fruit Conference that will be remote Dec. 1-4 this year. Presentations of the latest research and science in the industry will be delivered live via the new Virtual Event Platform with many new features for interactive Q&A between audience and speakers — and it can be from the comfort of your home or work space. Ten Washington State Department of Ag-
riculture pesticide credits are available on this year’s program. Topics to be covered include: • innovations in horticulture and small plant breeding • spotted winged drosophila management • weed management in red raspberries and blueberries • the latest on the Asian Giant Hornet threat • soil-borne disease management in red raspberries • residue decline
curves and disease management in red raspberries • arthopod management in small fruit production • international trade issues in small fruit production • lepidoptera in western Washington small fruit production • chemigation and fertigation regulations • pesticides and water quality in Skagit and Whatcom counties Review the program at https://pheedloop.
com/wasmallfruit/site/ sessions. Register at https:// pheedloop.com/ wasmallfruit/login/ auth/?redirect=/wasmallfruit/virtual/. For help with registration, contact Stacey Beier at stacey@red-raspberry.org. With program questions, contact Chris Benedict at chrisbenedict@ wsu.edu.
million pounds, up 4.2% from September 2019, the fifth month in a row of topping year-ago levels, and “somewhat against expectations,” says HighGround Dairy, “as cheese prices rose to record levels in July, likely impacting export potential.” Interestingly, considering the low U.S. butter prices, September exports only totaled 3.3 million pounds, down 10.2% from 2019. Nonfat dry milk-skim milk powder exports hit 135.6 million pounds, down 5.9% from a year ago, and the first time they were down from a year ago since February. This followed several months of record-high volume. Powder to Mexico was lower again, said HGD, on trend with recent months and down 33% year over year. Dry whey exports totaled 41.5 million pounds, up 52.3%, and for an eighth consecutive month topped the prior year. HGD says the increase was fueled by China, which took 358% or 15.3 million pounds more than a year ago, a key feed ingredient to baby pigs as it works to rebuild its herd devastated by African Swine Fever. The COVID pandemic
and its resulting stay-athome directives, plus a divisive Presidential election, have put the USA on an emotional and financial rollercoaster. Dairy price volatility has made farm bottom lines next to impossible to project. In another development, the Washington State Supreme Court has effectively struck down the state’s exemption from paying farmworkers time-and-ahalf for overtime. “Normal” may only be a setting on a dryer as we look to finish 2020, and absolutely no one has a clue as to what that will be in the New Year either. The Northwest Dairy Association makes these price projections for the Class III price and Pacific Northwest blend price: Month Class PNW III Blend Oct. $21.61 $16.11 (current) Nov. $23.33 $17.33 Dec. $18.68 $16.19 Jan. $17.48 $15.69 Feb. $16.82 $15.55 March $16.45 $15.65 April $16.50 $15.79 May $19.56 $16.34 Lee Mielke, of Lynden, is editor of the Mielke Market Weekly. Whatcom County has about 70 dairy farms.
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A14 • Wednesday, November 11, 2020 • lyndentribune.com
IN BLOOM
Is your garden winter ready? As Thanksgiving approaches, outdoor gardening takes a back seat to indoor activities. And with good reason — short days and cold, wet weather test the mettle of even the hardiest of us webbed-foot Washingtonian gardeners. Although our winters are more mild than in many areas of the country, windstorms from the northeast are particularly damaging here — not so much for the cold they bring as for the drying effect of the wind, which can leave plants essentially freeze-dried. The fancy word is “desiccated.” Here are a few tips to ensure your plants remain healthy through whatever winter brings. First, make sure your plants are all well-watered before a freeze. Properly hydrated plants can withstand the desiccating effects of a northeast wind much better than those that go into a windstorm dry. Second, move any atrisk plants in containers to a south- or west-facing wall along your house. Lemon cypress, the popular limegreen evergreen often used
By David Vos for height in pots, can winter burn easily in a northeaster, but I’ve successfully overwintered them in containers against the south wall of my house with no damage, even after a bad northeaster. Third, for tender plants you have in the ground, there are several options to ensure they remain healthy through winter. One of the best preventative measures you can take is to spray them sometime this month with an antidesiccant spray like Bonide Wilt Stop. This all-natural spray is made from pine resin and creates a protective waxy film that locks moisture into plant stems and foliage.
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One popular shrub susceptible to winter burn is nandina, a beautiful dwarf evergreen with colorful leaves in winter. Last year, I applied a spray of Wilt Stop to a nandina in my yard, and even with a week of blowing northeast winds and wind chills in the single digits, my nandina didn’t lose a single leaf. Wilt Stop can also help protect buds on shrubs like rhododendrons, azaleas, hydrangeas and lilacs from winter damage, ensuring abundant blooms next spring and summer. Apply Wilt Stop on a sunny day in above-freezing weather for the spray to cure properly and you’re done. A single spray application lasts all winter and safely dissolves on its own next spring. Fourth, another step you can take is admittedly a low-tech yet effective option: covering your smaller plants with old pots or buckets prior to a northeaster. In recent years hellebores have become increasingly popular as shade-loving evergreens with colorful flowers in winter and early spring. Many of the newer varieties bloom earlier than their predecessors, and while it’s nice to enjoy a blooming outdoor plant in January, in my experience they always burst into bloom just before a northeaster starts
to blow, spoiling the flowers. To prevent this problem, last year I turned some old shrub pots upside down over my hellebores just before a northeaster was forecast to begin. After gathering the foliage up and carefully tucking it into the pots, I made sure to work the lip of the pots down into the soil slightly to prevent them from blowing off. When I pulled the pots off after the windstorm had died down, even though the plants froze solid in the week the northeaster blew, they held their flowers and continued to bloom beautifully for the remainder of winter. Finally, don’t forget to get your lawn winter-ready as well. If you haven’t yet fertilized with a fall fertilizer like Scotts Turf Builder Winterguard, it’s not too late, and if you did it as early as September, your lawn has probably used up most of the nutrients in that application anyway. Feed your lawn now to build strong roots through winter. This year’s La Niña forecast (colder and wetter than normal) may make for a more eventful winter, so make sure you’re prepared to keep your lawn and garden looking their best through whatever winter has to bring! David Vos is manager of Vander Giessen Nursery Inc. of Lynden.
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The focus is on whether farmworkers get extra pay for more than 40 hours per week. (Courtesy photo)
Overtime Continued from A12
wrote. Justices Charles Johnson, Susan Owens and Mary Fairhurst also signed the dissent. The Washington Farm Bureau and Washington State Dairy Federation intervened in the lawsuit on the dairy’s side. Columbia Legal Services argued the case for the farm workers. The hearing was over a year ago, on Oct. 24, 2019. Last week’s ruling follows others by the state Supreme Court favoring higher pay for farmworkers. In separate decisions, the court ruled piece-rate workers were entitled to separate pay for rest breaks (2015) and time spent on tasks such as meetings and setting up equipment. Going back to the arguing of the case in 2019, farm groups claimed the overtime exemption reflects the seasonal nature of agriculture and the fact that farmers can’t pass on higher labor costs. Washington lawmakers in 1959 adopted the federal act that exempts agriculture from paying a premium for hours worked beyond 40 in a week, the Capital Press reported. The federal stance goes back to the 1930s. Farmworkers argued through their attorneys that state lawmakers have failed to follow the state constitution. The state constitution directs legislators to pass “necessary laws” to protect miners, factory workers and workers in other dangerous jobs. The constitution doesn’t specify what other jobs are dangerous, and the two sides disputed how hazardous farm work is. Attorneys also argued over whether the state constitution’s prohibition on granting special privileges to some people but not others applies. In this case, the privilege is overtime pay.
States vary in their rules on agricultural overtime pay In October 2015 the Journal of Law & Public Policy of Cornell University published an overview of farmworker overtime status in the country at the time, the Lynden Tribune found. Against a backdrop of an estimated well over 250,000 farmworkers going without any federal guarantee of overtime pay, more labor advocates were bringing their overtime reform efforts to state capitols, Cornell reported. States surveyed were California, Hawaii, Massachusetts, Minnesota and New York. California at the time set overtime to be more than 60 hours per week. Minnesota set 48 hours (but it would lost if the person was salaried). Hawaii was unique in requiring overtime pay for farmworkers who worked over 40 hours per week. However, an employer could choose 20 weeks each year for which they did not have to pay overtime to an agricultural employee until he or she reached 48 hours in a week. Most other states adhered to the Fair Labor Standards Act, which was passed into law in 1938 in the midst of the New Deal and signed by President Franklin Roosevelt. The legislation, still in force today, focuses on protecting the average American worker. It provides for a national minimum wage and requires overtime pay for those working beyond 40 hours per week. Placed into the FLSA, however, is a provision excluding agricultural workers from the legal right to receive overtime pay, and Congress has not removed that exclusion. Therefore, for American farmworkers, the legal right to overtime pay only exists, if at all, in state law.
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