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a dairy farmer milks cows

Cows don’t work eight-hour days and so neither do the men and women who milk them. Dairies operate round the clock, often with two or three milkings a day. Dairy workers, often immigrants from Latin American, can work in excess of 60 hours a week (pdf). And in most states they aren’t paid overtime.

Farm workers are excluded from the overtime provisions of the Fair Labor Standards Act, the Depression-era law that created the modern 40-hour work week. And on small farms, they’re also exempt from the minimum wage.

Agricultural labor has been treated differently from the rest of the American workforce since the FLSA was first passed in 1938. From a certain perspective, that makes sense: Farm work is not the same as industrial or office work, and that was particularly true in the 1930s, before the advent of large-scale mechanized farming. The work is more seasonal, and workers are more likely to be supplied room and board, complicating the compensation calculation. There were also constitutional concerns, since the legal basis for the FLSA rests on the interstate commerce clause of the US Constitution and most farms at the time sold their products locally.

But there’s another reason for the agricultural exemption that’s harder to justify in hindsight: the role of racist politics in the 1930s. It serves as a stark example of the institutional racism embedded into US law and society, and which sharpens the call today for reparations for past injustices.

President Franklin D. Roosevelt was dependent on the votes of southern Democrats in Congress to pass his sweeping package of New Deal legislation. And southern Democrats were beholden to white farm owners who were reliant on cheap Black labor. “Inexpensive and unregulated labor formed the plantation system’s backbone, and southern legislators fought hard to avoid higher wages and overtime costs,” Autumn Canny, an Iowa lawyer, wrote in the Drake Journal of Agricultural Law (pdf, p. 357) in 2005.

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A family of Missouri sharecroppers in 1938

A family of Missouri sharecroppers in 1938

In 11 southern states, Black farm workers made up 54% of the total, and many of them were sharecroppers and tenant farmers tied to the land through the perpetuation of debt enforced by racist laws, wrote Marc Linder, now a University of Iowa law professor, in the Texas Law Review in 1987. Farm owners were loathe to disrupt their lucrative arrangement:

To understand the motivations of southern congressmen, it is necessary to understand the southern plantation as a social system—a system threatened by many New Deal reforms. Indeed, it is crucial to view the threats to the system in just those terms: as threats to a system. Southern agricultural employers, therefore, were not merely the economic beneficiaries of the exclusion of farm workers from New Deal legislation. Instead, they and, consequently, their representatives in Congress could either win the exclusions or suffer the collapse of an entire way of life based on the subjugation of blacks.

Southern legislators were explicit about their need for the exemption. “There has always been a difference in the wage scale of white and colored labor. So long as Florida people are permitted to handle the matter, this delicate and perplexing problem can be adjusted…You cannot put the Negro and the white man on the same basis and get away with it,” said J. Mark Wilcox, a Democratic representative from Florida, quoted by Linder.

Southern plantation owners were the biggest beneficiaries of the exemption. Adjusted for hours worked, northern farm workers were already making more than the 25 cents an hour required by the new minimum wage. But southern farm workers of all races made 10 cents an hour, and Black farm workers made even less.

In 1966, the minimum wage provision of the FLSA was amended to include some farm workers, but not small farms, defined roughly as those with seven or fewer workers. All farm workers remain exempt from federal overtime provisions.

“If you look at the history of exclusions to overtime provisions—agricultural worker, domestic workers, until recently home healthcare workers—they’re jobs primarily held by people of color,” said Judy Conti, the government affairs director of the National Employment Law Project, a non-profit organization that advocates for raising the minimum wage. “It is a law that works in a systematically racist fashion and if we don’t recognize that we have failed.”

In the absence of changes to federal law, a few states have introduced their own overtime provisions for farm workers. Starting this year in California, for example, employers are required to pay overtime for any hours worked over 50 a week on farms with 25 or more workers (the threshold was as high as 60 hours a week until the passage of new laws phasing in new standards). New York, Minnesota, and Hawaii also have laws requiring overtime for farm workers, but none hold farm employers to the same standards as other employers.

Washington may join them. The state’s Supreme Court is considering a challenge to its 1959 law exempting farm workers from overtime (pdf), filed on behalf of the state’s dairy workers.