Prunes: It's Better to Dry Them Than Pick 'Em

By Casey C. Sullivan, Esq. on February 19, 2016 | Last updated on March 21, 2019

When it comes to labor regulations, farm workers are in a class by themselves -- a class that largely exempts them from normal minimum wage, child labor, and overtime laws. But even that class has subclasses, which privilege certain types of agricultural work over others. If you're a prune dryer in California, for example, state regulations entitle you to more overtime than if you're simply a prune picker.

And those regulations have a bit of a bite, as two farmers learned on Tuesday in California's Third Appellate District court.

Unlucky Wage Order No. 13

Two wage orders from California's Industrial Welfare Commission govern overtime pay for agricultural workers. Wage order Number 13 covers "all persons employed in industries preparing agricultural products for market, on the farm." Such work must take place in a fixed structure, and not in the field.

Wage order Number 14 covers those workers harvesting, picking, packaging, or transporting agricultural products pre-market.

When it comes to overtime pay, those workers governed by order No. 13 have the better deal.

In 2012, two Sacramento prune farmers, Jaswant Bains and Piara Gosal, received orders from the Department of Industrial Relations, Division of Labor Standards Enforcement, contending that order No. 13 applied to their workers involved in drying prunes.

Bains and Gosal both run prune orchards where prunes are grown and dried on the premises. (Yes, prunes are plums before they are dried, but the cultivars grown specifically for drying are referred to as prunes even in their pre-prune stages.)

Bains and Gosal sought a declaratory order stating that their workers were not covered by order 13, lost, and appealed.

Moving Your Processing Center Doesn't Change the Nature of the Work

The orchardists' main contention was that the workers involved in drying their prunes were covered by wage order No. 14. Those workers were, in the orchardist's view, simply harvesters, since their work entailed shaking the prunes off the tree, collecting the fallen fruit, and moving them to nearby structures to be dried.

As the court of appeals noted, order No. 14 covers workers involved in picking, packing, and moving. It covers most of what the typical prune worker did. But, wage order No. 13 covers workers engaged in "any operation" that takes place "in a permanently fixed structure" on the farm. As the court noted, "any" is to be interpreted broadly and drying sheds were permanent structures, making the drying activity subject to order No. 13.

The court was not swayed by previous guidelines and Department letters that treated the drying of other crops as labor covered by order No. 14. Those guides were, the court noted, just interpretative and the letters did not change the nature of prune dryers work.

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