On February 16, 2016, the California Court of Appeal determined in Jaswant Bains, et al. v. Department of Industrial Relations, Division of Labor Standards Enforcement that Wage Order No. 13 applies to workers in a farm’s drying facility. While workers are operating in drying sheds, they are entitled to be treated as “processors” under Wage Order No. 13, rather than “harvesters” under Wage Order No. 14. This decision impacts farm owners who must ensure they pay drying facility workers the higher overtime rates to which they are entitled under Wage Order No. 13, rather than the overtime rates for workers covered by Wage Order No. 14.
The Bains case involved Plaintiffs Bains and Gosal, both farmers, who had some workers who harvested prunes from trees and transported them to drying sheds (fixed structures on the farm) where other workers dried them for marketing. Plaintiffs argued that all of the workers were covered by Wage Order No. 14.
Wage Order No. 14 covers workers engaged in “harvesting,” including “picking…field packing, and placing in field containers or in the vehicle in which the commodity will be hauled, and transportation on the farm or to a place of first processing or distribution.” Generally, it covers workers not engaged in changing the nature of the crops.
Wage Order No. 13 covers workers engaged in “any operation performed in a permanently fixed structure…on the farm…for the purpose of preparing agricultural…products for market…and includes all operations incidental thereto.” Thus, it generally covers workers engaged in altering crops to facilitate their marketing.
Based on the plain reading of the Wage Orders, the Court concluded that the farmers’ workers who dried the prunes in the drying sheds to prepare them for market fell squarely into the definition of Wage Order No. 13, while the other workers who harvested and transported the prunes to the drying sheds were covered by Wage Order No. 14.
Guidance & Best Practices
The Division of Labor Standards Enforcement (“DLSE”) provides further direction on this issue in its guide on selecting the correct wage order, stating, “growing, spraying, thinning, picking, sun or solar field drying” fall within Wage Order No. 14, where “sorting, grading, moisturizing, all drying in a structure including oven drying or dehydrator drying, fumigating, packing, packaging, shipping” fall within Wage Order No. 13.
The DLSE regularly conducts audits and investigations of farmers throughout California. Thus, it is important that farmers are mindful that they are properly classifying their workers according to the correct wage orders, particularly when wage orders call for differing pay rates like Wage Orders No. 13 and 14.