Agricultural Overtime

The 2021 legislative session included passage of ESSB 5172, a bill expanding the state Minimum Wage Act’s overtime protections to all agricultural workers, including agricultural piece-rate workers. Signed by Gov. Jay Inslee, this new law went into effect on July 25, 2021. While dairy workers are entitled to receive overtime pay for all hours worked over 40 in a workweek, the law establishes a gradual phase-in period for full overtime eligibility for all other agricultural workers. The phase-in for non-dairy agricultural workers begins Jan. 1, 2022. During the phase-in period, agricultural workers will be eligible for overtime compensation for hours worked over 55 during a workweek beginning Jan. 1, 2022, for all hours worked over 48 beginning Jan. 1, 2023, and for all hours worked over 40 beginning Jan. 1, 2024.
You can learn more about changes in the law at L&I’s agricultural overtime web page.

Most employees who work more than 40 hours in a 7-day workweek must be paid overtime. Overtime pay must be at least 1.5 times the employee’s regular hourly rate. Other overtime rates, like double time pay are not required under Washington state law, with the exception of certain public works projects. Employees cannot waive their right to overtime pay.

  • Employers must pay overtime to eligible workers regardless of the employer’s size.
  • Employers can mandate overtime work, with the exception of certain healthcare facility employees.
  • Collective bargaining agreements and employers can provide overtime pay more generous than Washington law requires.

Workweek and Workday

Employers can define a workweek as any 7 consecutive days beginning on the same day and time every week. If an employer does not define a workweek, then it defaults to the calendar week – Sunday through Saturday. Washington law does not require overtime for hours worked over 8 hours in a day, with the exception of certain public works projects.

Who gets overtime?

  • Most hourly, piece rate, and commissioned employees
  • Some salaried employees – Contrary to popular belief, some salaried employees are entitled to overtime. Only salaried employees who meet the executive, administrative, and professional definitions – often called “white-collar” jobs – are exempt from overtime.
  • Employees working on prevailing wage jobs
  • Employees working in agriculture and dairy industries

Who does not get overtime?

Please note: This L&I policy is being updated to reflect the changes in law regarding agricultural workers.

Calculating Overtime

Overtime pay must be at least 1.5 times the employee’s regular hourly rate for all hours worked over 40 hours in a week. This regular hourly rate cannot be less than state’s minimum wage. There are two steps to calculate overtime:

  1. Determine an employee’s regular hourly rate
  2. Multiply the regular hourly rate by 1.5 for every hour worked over 40 hours.

Regular hourly rate

An employee’s “regular hourly rate” is calculated by:

  • Adding together their weekly compensation (not including overtime premiums), and
  • Dividing by the total number of hours worked during the week.

Compensation that is included in an employee’s regular hourly rate:

  • Hourly rates – All hourly rates must be included when there is more than one hourly rate of pay
  • Salary rates – Pay based on weekly, monthly, or annual fixed amount
  • Piece rates and flat rates – Wages paid per unit of work.
  • Commissions – Payments that are usually a percentage of a sale or profit.
  • Non-discretionary bonuses – Bonuses received due to a contract, agreement, or promise.

Compensation that is excluded from an employee’s regular hourly rate:

  • Discretionary bonuses – Bonuses given without a prior contract, agreement, or promise.
  • Tips and service charges – Tips are amounts freely given by a customer to an employee. Service charges usually are added to a customer’s bill for services related to food, beverage, or entertainment, and may be payable to workers.
  • Reimbursed expenses – Payments from an employer to cover a worker’s out-of-pocket costs related to employment such as gas, food, lodging (per diem), and airfare.
  • Paid time off – Payments to a worker for time not spent working, such as vacation, holidays, and sick leave.

Calculating an employee’s regular hourly rate

Again, to determine the regular rate, you add up all the qualifying compensation that an employee earns for the week, and divide by the number of hours worked. This number is the employee’s regular hourly rate. It can vary from week to week, and must be calculated every time.

For example:

A mechanic works 48 hours in a week. Of those hours, 38 are paid at $35 per hour. 10 of those hours were worked at a flat-rate that was calculated to take 12.7 hours. She gets paid $444.50 for the flat rate work. 8 hours must be paid at an overtime rate.

Calculating the regular hourly rate:

  • Multiply the hourly wage by the number of hours worked at the hourly wage ($35 x 38 hours = $1,330)
  • Add the flat rate work ($444.50) to the hourly compensation ($444.50 + $1,330 = $1,774.50)
  • Divide the total compensation by the number of hours worked. ($1,774.50 / 48 hours = $36.97)
  • In this example, the “regular rate” of pay is $36.97 per hour for the week.

Calculating overtime premium and total compensation from the regular hourly rate:

  • Multiply the “regular rate” by the non-overtime hours worked ($36.97 x 40 hours = $1,478.75)
  • Multiply the overtime hours (8 hours) at the overtime rate ($36.97 x 1.5 = $55.46) ($55.46 x 8 hours of overtime = $443.68)
  • Add the regular rate hours and the overtime together ($1,478.75 + $443.68)
  • The total compensation is $1,922.43

- OR -

  • Multiply the number of overtime hours worked by the “overtime premium” – which is the regular rate multiplied by .5 (8 hours x $36.97 x .5) = $147.88
  • Add the overtime premium ($147.88) to the number of hours worked (48 hours) multiplied by the regular rate ($36.97 x 48 = $1,774.56)
  • The total compensation is $1,774.56 + $147.88 = $1,922.44 (numbers differ due to rounding)

Alternatives to Overtime

Only public employees are eligible for time off instead of being paid overtime under federal law. This is commonly known as “comp time” or “exchange time.” This time off must be credited at the rate of at least 1.5 hours of time off for each hour of overtime worked. An employer may not require a worker to take comp or exchange time — it is at the worker’s request. Private employers cannot enter into these agreements.