As of January 1, 2023, employers are required to pay overtime to agricultural workers after they work 55 hours in one workweek. There are some situations where an employer may be exempt from paying overtime and minimum wage.
- How does Oregon law define agriculture?
"Agriculture" includes farming in all its branches. Among other things, agriculture includes cultivating and tilling the soil, dairying, producing, cultivating, growing, and harvesting any agricultural or horticultural commodities, raising livestock, bees, fur-bearing animals, or poultry and any practices performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparing for market, delivering products to storage or to market or to carriers for transportation to market. "Agriculture" generally does not include forest products and the harvesting of timber, but workers engaged in the planting, pruning, and harvesting of Christmas trees are considered agricultural employees.
- How does Oregon law define agricultural worker?
An "agricultural worker" is an individual who performs services in agriculture for an employer in exchange for an agreed remuneration or rate of pay.
- How does Oregon law define workweek?
A "workweek" is a fixed period of time established by an employer that reflects a regularly recurring period of 168 hours or seven consecutive 24-hour periods.
- Is it ever necessary to pay overtime to agricultural workers?
Yes. HB 4002 has changed the requirement for overtime in agriculture. As of January 1, 2023, employers are required to pay overtime to agricultural workers after they work 55 hours in one workweek. Starting January 1, 2025, employers will be required to pay overtime to agricultural workers after they work 48 hours in one workweek. Starting January 1, 2027, employers will be required to pay overtime to agricultural workers after they work 40 hours in one workweek. An employer should seek independent legal advice regarding their overtime obligations.
- Are there any exemptions to paying overtime in agriculture?
Yes. HB 4002 states that overtime compensation requirements for agricultural workers do not apply to:
- members of an employer's immediate family.
- local hand harvest or pruning workers who are paid piece rate and who worked fewer than 13 weeks during the previous calendar year.
- migrant hand harvest workers 16 or younger who are paid the same piece rate as workers over 16.
- workers mainly engaged in the range production of livestock.
- harvest and pruning workers who are paid piece rate and work for an employer who did not exceed 500 piece-rate workdays of agricultural labor in any quarter of the previous calendar year. A piece-rate workday accrues for each day an employee performs piece-rate agricultural labor for at least one hour.
- any individual employed in agriculture whose principal duties are
administrative, executive OR professional work AND who: perform predominantly
intellectual, managerial or creative tasks; exercise discretion and independent
judgment; AND earn a salary and are paid on a salary basis.
- If an agricultural worker is paid on a salary basis, are they exempt from overtime?
It depends. Just because an employee is paid a salary, does not mean they are exempt from overtime. There are two distinct classifications of employees who are paid on a
salary basis: salaried exempt employees and salaried non-exempt employees.
Salaried exempt employees must meet one of the three specific “job duties” test
for administrative, executive or professional work. If an employee’s work
duties do not meet one of these three tests, they should be classified as
salaried non-exempt. Please visit the Salaried Exempt
Employees page for additional information.
Note that misclassification of a salaried employee can be costly. Giving an employee a management title and paying them on a salary basis does not automatically trigger an exemption to overtime. Employers are advised to review both Federal and State classification laws, all of which are described in detail in the Employee Classification and Wage and Hour Exemptions Handbook.
- Do agricultural employers have to pay overtime to office staff?
It depends on the job duties and pay of the office staff. Some office staff may qualify as salaried exempt employees. If they are paid on a salary basis and their job duties meet one of the three “job duties" tests for administrative, executive or professional work then they would be classified as salaried exempt employees. If they are paid on a salary basis, and their responsibilities are limited to duties integral to the farming operations of their employer, but their job duties do not meet one of the three “job duties" tests, then they would be classified as salaried non-exempt and be owed overtime after working 55 hours in one workweek.
It is important to note that office staff whose work is not part of, or integral to, the agricultural activity of the farming operations may not be considered an agricultural worker and would be owed overtime after working 40 hours in one workweek if they are classified as a salaried non-exempt employee.
- How is overtime calculated for a salaried non-exempt employee?
Overtime pay is calculated for each workweek without regard to hours worked in any other workweek and without regard to the pay period. Employers are required to establish the workweek for each employee. The workweek may begin at any hour and day the employer chooses and ends seven consecutive days later. Once an employee's workweek is established, however, it must remain the same and may not be changed unless the change is intended to be permanent and not made to avoid the payment of overtime. OAR 839-020-0030(2)(a).
For weekly salary, the regular rate of pay for non-exempt, salaried employees is an hourly amount equal to the amount of the weekly salary divided by the number of hours the salary is intended to compensate in a regular workweek.
Example: An agricultural employee is hired at a salary of $935.00 for a 55-hour workweek. The employee's regular rate is $17.00 per hour ($935.00 ÷ 55 hours). If the employee were to work 65 hours in a workweek, the employee would need to be paid $17.00 per hour for the first 55 hours ($935.00) and $25.50 ($17.00 x 1.5) for each of the 10 overtime hours worked ($255.00). Accordingly, the total wages owed for the week would be $1,190.00.
Where the salary represents a period other than a workweek, the salary must be reduced to its workweek equivalent. OAR 839-020-0030(3)(g).
For monthly salary, the salary would be converted to its weekly equivalent by multiplying the monthly amount by 12 to obtain an annual salary, and then dividing that annual amount by 52 to obtain a weekly salary. The regular hourly rate can then be computed by the same methods outlined above.
Example: The regular rate and overtime rate for an agricultural employee who is paid a monthly salary of $3900.00 for a 55-hour workweek would be computed as follows:
$3,900.00/month x 12 months/year = $46,800.00/year
$46,800.00/year ÷ 52 weeks/year = $900.00/week
$900/week ÷ 55 hours/week = $16.37/hour (regular rate)
$16.37/hour x 1.5 = $24.55/hour (overtime rate)
- How does overtime apply to agricultural workers who handle or work on products not grown by their employer?
If an agricultural worker handles or otherwise works on products not grown by their own employer, or do not work within the definition of agriculture as outlined above, then the employee is due overtime after 40 hours in one workweek. An employee who processes or handles ANY AMOUNT of another farmer's crop is entitled to overtime under both state and federal law.
If such processing or handling constitutes "manufacturing" then daily overtime and maximum hours worked may apply. Manufacturing means the process of using machinery to transform materials, substances or components into new products. Please visit the Manufacturing and Canneries page for additional information.
- Do agricultural processors have to pay daily overtime?
Oregon law requires the payment of overtime to employees who work more than 10 hours per day in canneries, driers and packing plants, excluding those that are located on farms which primarily process products produced on such farms. ORS 653.265. The Bureau has interpreted “primarily process products produced on such farms” to mean the volume of product processed and not the value.
While this daily overtime requirement does not apply to establishments located on farms and that primarily process products produced on such farms, employees of such establishments may still be owed overtime after 40 hours worked in a workweek if an employee handles or processes ANY AMOUNT of another farmer’s crop.
As of January 1, 2023, employees of agricultural processors are owed overtime pay after 55 hours in one workweek even if the establishment is located on the farm of the employer and the employees only process products produced on such farm.
Agricultural employers should also note that the provisions of ORS 652.020 may also require the payment of daily overtime (after 10 hours in a day) and impose a maximum limit to hours worked each day (of 13 hours) when operations of the establishment constitute “manufacturing”. ORS 652.020(1)(b); OAR 839-001-0100(14). Please visit the Manufacturing and Canneries page for additional information.
- Are piece-rate workers eligible for overtime?
If piece-rate workers do not meet the overtime exemptions listed above, then yes, they are eligible for overtime after working 55 hours in a workweek.
- How is overtime for piece-rate work calculated if an agricultural worker does not receive an hourly wage?
Example: An agricultural worker earns $900 piece rate while working 60 hours in a workweek.
- How is overtime calculated for agricultural workers who work both hourly and for piece-rate pay?
Example: An agricultural worker earns $500 piece rate while working 25 hours. The worker also earns $525 while working 35 hours at an hourly rate of $15/hour in the same workweek.
Step 2: Calculate total straight-time pay by adding total piece-rate earnings and total hourly earnings. $500 + $525 = $1025
Step 3: Calculate the weighted average by dividing the total straight-time pay by the number of hours worked. $1025/60 =$17.08
Step 4: Calculate the overtime rate by multiplying the weighted average by 0.5. $17.08 x 0.5 = $8.54 owed/overtime hour
Step 5: Calculate overtime hours. 60 hours - 55 hours = 5 hours overtime
Step 6: Calculate how much overtime pay is owed. $8.54 owed/overtime hour x 5 hours overtime = $42.70 overtime pay is owed
Step 7: Calculate weekly gross pay by adding straight-time pay (Step 2) and overtime paid owed (Step 6). $1025 + $42.70 = $1067.70 weekly gross pay
- What hours are considered "hours worked" for employees who are paid on a piece-rate basis?
The same laws apply for paid time and travel time regardless of if an employee is paid on an hourly basis or paid on a piece-rate basis.
Wage and hour law defines “hours worked" or “work time" (meaning the time that must be paid) as the time an employee is employed by and required to give to the employer. This includes all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed work place and all time the employee is suffered or permitted to work. (Click here for details on rest breaks and meal periods.)
Oregon Administrative Rules require employers to track hours worked each day by each non-exempt employee and provide an itemized statement of earnings each time an employee receives compensation from their employer.
Preparatory and concluding activities are considered hours worked if the activities are an integral and indispensable part of a principal activity for which the employee is employed.
Some examples of these compensable activities within agriculture include:
- A worker setting up, maintaining, or repairing equipment which is needed to complete work tasks.
- A worker cleaning, evaluating, or storing equipment at the end of the day.
Waiting time is also compensable time. Wage and hour law divides waiting time into two categories: (1) Engaged to wait and (2) Waiting to be engaged.
Where waiting is an integral part of the job, meaning the time spent waiting belongs to and is controlled by the employer and the employee is unable to use the time effectively for their own purposes, the employee is “engaged to wait." Employees engaged to wait need to be paid for that time as part of hours worked.
Examples within agriculture could include:
- A worker needs to wait for a truck to arrive to empty picking buckets into bins.
- A worker needs to wait for directions from a supervisor before proceeding with work.
- A worker needs to wait for replacement equipment or materials to complete work tasks.
Employees who are completely relieved from duty for periods which are long enough for the employee to use the time effectively for their own purposes are waiting to be engaged – this time is not paid as hours worked.
Whether a period of time is long enough to enable an employee to use the time effectively for their own purposes depends upon all of the facts and circumstances of the situation.
Travel time may be compensable time. Certain kinds of travel should be included in work hours. For example, travel between multiple worksites within a single day must be included in work hours. For more information about travel time and mileage please visit BOLI's Travel Time & Mileage webpage.
Yes. The requirement to report to work serves a clear business purpose benefiting the employer and is necessary for the smooth operation of the business. These hours are work hours for both hourly employees and employees paid on a piece-rate basis.
- Do agricultural workers who work in Oregon AND perform some of their work in another state receive overtime?
Whether the hours worked in another state count toward the 55-hour threshold for payment of overtime in Oregon depends on several factors. First, it would depend on how an employer's business is set up. The answer may differ if the employer is a farm labor contractor or has different business entities.
Since Oregon law, another state's law, and federal law may apply, an employer will want to see which law will pay the employee the most and follow that calculation. Paying the highest amount among the three laws, will ensure that the strictest potential legal requirement is being met.
- Does overtime in agriculture apply to transporting or delivering agricultural products?
Review the definition of agriculture above. Note that "delivering products to storage or to market or to carriers for transportation to market" is considered agriculture. The term "market" means the farmer's market which can include the wholesaler, processor, or distributing agency to which the farmer delivers products. When a delivery involves travel off the farm (which would normally be the case) the delivery must be performed by the employees employed by the farmer in order to constitute an agricultural practice. Such employees would be eligible for overtime after working 55 hours in a workweek. However, delivery by an independent contractor for the farmer or a group of farmers or by a "bird-dog" operator who has purchased the commodities on the farm from the farmer is not an agricultural practice and would not be included in agricultural overtime.
Other overtime rules and/or exemptions outside of agriculture may exist. Please review the Motor Carrier Exemption fact sheet for additional information.
- How does overtime work when a farmer or farm contracts with a farm labor contractor to provide employees?
Wage and hour law recognizes that sometimes work benefits two or more employers simultaneously, such as when a labor contractor provides a crew for specific agricultural tasks. In such joint employment situations, both parties may share responsibility for ensuring compliance with wage and hour obligations. Joint employment determination by BOLI is guided by federal law 29 CFR §825.106. Please visit the Farm Labor Contractors page for additional information.
- Are there exemptions to minimum wage in agriculture?
Yes. The same exemptions for overtime apply to minimum wage in agriculture. Minimum wage requirements for agricultural workers do not apply to:
- members of an employer's immediate family.
- local hand harvest or pruning workers who are paid piece rate and who worked fewer than 13 weeks during the previous calendar year.
- migrant hand harvest workers 16 or younger who are paid the same piece rate as workers over 16.
- workers mainly engaged in the range production of livestock.
- harvest and pruning workers who are paid piece rate and work for an employer who did not exceed 500 piece-rate workdays of agricultural labor in any quarter of the previous calendar year. A piece-rate workday accrues for each day an employee performs piece-rate agricultural labor for at least one hour.
- any individual employed in agriculture whose principal duties are administrative, executive OR professional work AND who: perform predominantly intellectual, managerial or creative tasks; exercise discretion and independent judgment; AND earn a salary and are paid on a salary basis.
- Are employees on small farms exempt from minimum wage and/or overtime?
Both federal and state laws provide minimum wage and overtime exemptions for "small" farms, however, the criteria are different for each. Employers in small farming operations must take care to be sure that they are exempt under each law before deciding not to pay minimum wage.
Federal criteria: If the employer did not employ more than 500 man-days of agricultural labor in any calendar quarter of the preceding calendar year, the minimum wage exemption applies for all agricultural employees for the entire following year. A man-day is any day during which an employee performs agricultural labor for at least one hour. Federal laws do not require employers to pay overtime to employees who work 100% of their workweek in agriculture.
State criteria: If the employer did not employ more than 500 piece-rate workdays in any calendar quarter of the preceding calendar year, the employer’s hand harvesters and pruning laborers who are paid on a piece-rate basis are exempt from minimum wage for the entire following year. If this criteria is met, the hand harvesters and pruning laborers would also be exempt from any overtime pay requirements.
- Is it necessary to pay minimum wage to minors in agriculture?
Yes. That said, Oregon law also provides a minimum wage exemption for all hand harvesters who are 16 years old and younger, as long as they are paid on the same piece-rate basis as older workers. Federal law requires that the parent or person standing in place of the parent also be employed on the same farm. Please visit the Minor Workers page for additional information.
- What is the "commuter" exemption?
Hand harvesters who commute daily from their permanent residence, regardless of age, are exempt from minimum wage and overtime if they are paid on a piece-rate basis and if they have been employed in agriculture less than 13 weeks in the previous calendar year.
- Are there any limitations on the payment of "piece rates"?
For the purposes of the minimum wage and overtime exemptions listed here, the payment of piece rates must be "in an operation generally recognized as piecework in the region of production."
- Are there any exemptions for ranchers?
Yes. Workers whose duties meet the federal definition of range production of livestock and who spend more than 50 percent of their time working in the range production of livestock are exempt from minimum wage and overtime. To be exempt, Oregon workers must be paid on a salary basis, which is defined as 2,080 hours times the current minimum wage, then divided by 12. ORS 653.020(1)(e) and ORS 653.010(9). Please visit the Oregon Minimum Wage page for additional inforamation.
Oregon refers to the federal definition of range production of livestock as defined and described in 29 CFR §780. See 29 CFR §780.323 through 29 CFR §780.329 for complete descriptions.
29 CFR §780.326 (a)-(b) defines what "range" means. Specifically, "range" is defined generally as land that is not cultivated. It is land that produces native forage for animal consumption and includes land that is revegetated naturally or artificially to provide a forage cover that is managed like range vegetaion. "Forage" as used here means "browse" or herbaceous food that is available to livestock or game animals. The range may be on private or Federal or State land and need not be open. Typically, it is not only non-cultivated land, but land that is not suitable for cultivation because it is rocky, thin, semiarid, or otherwise poor. Typically, also many acres of range land are required to graze one animal unit (five sheep or one cow) for 1 month. By its nature, range production of livestock is most typically conducted over wide expanses of land, such as thousands of acres.
- How does overtime apply to my H-2A employees?
BOLI does not have any jurisdiction over the H-2A program and is unable to answer questions regarding the H-2A program . Please contact the United States Department of Labor for help with questions related to the H-2A visa program. Or, visit the H-2A Temporary Agricultural Program page for additional information.
Contact the United States Department of Labor at 503-326-3057 for more information on federal law.