January 5, 2017

Irrigator Exemption Probably Safe Until 2019

As previously reported in Spotlight, agricultural employees are now thought to be covered under the seventh-day’s rest provisions in Labor Code sections 551 and 552, as of January 1, 2017, pursuant to AB 1066. However, the irrigator exemption is probably left unchanged until January 1, 2019.

AB 1066 has caused many employers and legal practitioners to question the viability of the various ag exemptions from overtime, particularly the irrigator exemption found in Industrial Welfare Commission (IWC) Order No. 14-2001. This provision states that the overtime provisions applicable to non-exempt agricultural workers do not apply to a Wage Order 14 employee “during any week in which more than half of such employee’s working time is devoted to performing the duties of an irrigator.”

While AB 1066 is not clear when it comes to the various ag exemptions, there is a defensible position that the irrigator exemption goes away beginning with the overtime threshold phase-in provisions of the bill – 2019 for employers of 26 or more employees and in 2022 for employers with 25 or fewer employees. 

AB 1066 added section 861 to the Labor Code, which provides:

Except as set forth in Section 860 and subdivision (a) of Section 862, all other provisions of Chapter 1 (commencing with Section 500) regarding compensation for overtime work shall apply to workers in an agricultural occupation commencing January 1, 2017.”

The overtime phase-in provisions appear in the excepted sections, which take effect in 2019 (for over -25 employers, 2022 for under-26 employers), and the ten-hour work day under Wage Order 14 stays in effect until that time. AB 1066 apparently does not expressly eliminate the irrigator exemption before 2019, at the earliest, and Labor Code section 861, quoted above, does not refer to the exemptions under Order 14.

However, since irrigators are deemed “agricultural employees” as defined by the statute, the seventh-day overtime rest provisions in Labor Code section 510 (which arguably began to cover all ag employees on January 1, 2017), likely apply to irrigators as well. While irrigators likely remain exempt from daily and weekly overtime requirements at least until 2019, it is recommended that ag employers provide one day’s rest in seven to all employees, including irrigators. If that is not possible or practical, then employers are encouraged to make such work voluntary and encourage employees that do volunteer to work on the seventh day to sign a voluntary-work acknowledgement.

Below are sample forms in English and Spanish created by Rob Roy at the Ventura County Agricultural Association for your use. 

Sample 7th Day Voluntary Work Acknowledgement Form

Sample 7th Day Voluntary Work Acknowledgement Form (Spanish)

For more information, please contact Jason Resnick at (949) 885-2253.