Agricultural and domestic workers in California have won new overtime rights under state law.

The Phase-In Overtime for Agricultural Workers Act of 2016 removes “the exemption for agricultural employees regarding hours, meal breaks, and other working conditions, including specified wage requirements, and creates a schedule that phases in overtime requirements for agricultural workers … over the course of 4 years, from 2019 to 2022….” The new law provides employers that employ 25 or fewer employees an additional 3 years to comply with the phasing in of these overtime requirements.

The current agricultural overtime law

Farm workers in California currently may not be employed more than 10 hours in a workday or more than 6 days in any workweek, unless they are paid 11/2 times their regular rate of pay for hours in excess of 10 in any workday and for the first 8 hours on the 7th day of work and double the employee's regular rate of pay for all hours worked over 8 on the 7th day of work in the workweek (IWC Wage Order 14).

This exception does not apply to those employed in on-farm preparation of agricultural products for market and in the handling of products after harvest or for those whose primary duty is irrigation.

The new agricultural overtime law

Specifically, the new law states:

• Beginning January 1, 2019: For an employer that employs more than 25 employees, any person employed in an agricultural occupation must be paid 11/2 times his or her regular rate of pay for working more than 91/2 hours in any 1 workday or more than 55 hours in any 1 workweek. For employers with 25 or fewer employees, the effective date is January 1, 2022.
• Beginning January 1, 2020: For an employer that employs more than 25 employees, any person employed in an agricultural occupation must be paid 11/2 times his or her regular rate of pay for working more than 9 hours in any 1 workday or working in excess of 50 hours in any 1 workweek. For employers with 25 or fewer employees, the effective date is January 1, 2023.
• Beginning January 1, 2021: For an employer that employs more than 25 employees, any person employed in an agricultural occupation must be paid 11/2 times his or her regular rate of pay for working more than 81/2 hours in any 1 workday or more than 45 hours in any 1 workweek. For employers with 25 or fewer employees, the effective date is January 1, 2024.
• Beginning January 1, 2022: For an employer that employs more than 25 employees, any person employed in an agricultural occupation must be paid 11/2 times his or her regular rate of pay for working more than 8 hours in any 1 workday or more than 40 hours in any 1 workweek. For employers with 25 or fewer employees, the effective date is January 1, 2025.
• Beginning January 1, 2022: For employers that employ more than 25 employees, any person employed in an agricultural occupation must be paid double time for working more than 12 hours in 1 day. For employers with 25 or fewer employees, the effective date is January 1, 2025.

A day of rest must be provided to any person employed in an agricultural occupation effective January 1, 2017. In addition, meal periods must be provided effective January 1, 2017. Employees must be allowed a half-hour meal break during any work period of more than 5 hours per day.

Employees may voluntarily give up their meal breaks if the workday does not exceed 6 hours. Employees who work more than 10 hours per day must be provided a second meal period of not less than 30 minutes, except that if the total hours worked is less than 12 hours, the second meal period may be waived, but only if the first meal period was not waived.

Domestic “personal attendants’” overtime rights now permanent

Domestic workers in California have also recently obtained new overtime rights. The California Domestic Worker Bill of Rights provides overtime for domestic workers who are personal attendants if they work more than 9 hours in any workday or more than 45 hours during the workweek.

A “personal attendant” is defined as any person employed by a private household or any third-party employer recognized in the healthcare industry to work in a private household to supervise, feed, or dress a child or a person who, by reason of advanced age, physical disability, or mental deficiency, needs supervision. To have personal attendant status, the employee may not spend more than 20% of his or her weekly work time engaged in other duties.

There are several exceptions, including but not limited to casual babysitters, certain family members, workers employed by a licensed healthcare facility, and persons employed pursuant to a voucher. Nonattendant duties include making beds, housecleaning, cooking, laundry, or other duties related to the maintenance of a private household or the premises.

The law, which was implemented January 1, 2014, carried a 3-year sunset provision. California Governor Jerry Brown signed the bill into law on September 12, which has made the overtime protections permanent effective January 1, 2017.

Domestic workers who are not personal attendants

If an employee works in the home but is not a personal attendant, he or she is not covered by the Domestic Worker Bill of Rights. However, regular overtime protections apply under Wage Order No. 15, which sets overtime protections for domestic workers who are not personal attendants. There are different overtime protections depending on the type of work performed:

• Non-live-in domestic workers who are not personal attendants are entitled to overtime (1.5 x the regular rate of pay) for hours worked over 8 in a day or 40 regular hours in a workweek; overtime for the first 8 hours on the 7th consecutive day of the workweek; double time for hours worked over 12 in a day; and double time for hours worked over 8 on the 7th consecutive day of the workweek.
• Live-in domestic workers who are not personal attendants are entitled to overtime for hours worked over 9 in a day and for the first 9 hours worked on the 6th and 7th consecutive day of the workweek. Live-in employees are entitled to double time for hours worked over 9 hours on the 6th and 7th consecutive day of workweek.

Additional articles and resources

• Not Fair! California Fairground Employer Faces Overtime Claims
• California employer alert: Overtime regulations may impact 'gap' employees
• Do you have to include benefits opt-out payments when calculating overtime?
• California Overtime Rules Calculator