And the Temple Rocked

The Washington Supreme Court’s foundation-shaking decision in Martinez-Cuevas v. DeRuyter Bros. Dairy holds dairy workers entitled to overtime protections

BY MARC LAMPSON

Holsteins are huge in the Yakima Valley.¹

MAJORITY OPINION FAVORS FARMWORKER OVERTIME PAY

The Washington Supreme Court, in its foundation-shaking decision, Martinez-Cuevas v. DeRuyter Bros. Dairy,⁸ took on this brew of bad cows, menacing machinery, and long hours.

As for the long hours, the majority opinion⁹ held that the part of the state’s Minimum Wage Act (MWA), which says farmworkers¹⁰ are not entitled to overtime pay for hours worked over 40 per week, violated the state’s constitution, as applied to dairy workers.¹¹ Three justices signed a concurrence;¹² four justices dissented.¹³ But the majority held that because the statute excluded farmworkers from overtime pay, the statute granted “legislative favoritism” to a group of employers at the expense of a fundamental right of workers to health and safety protection, and it thus violated article 1, section 12 of the Washington Constitution: “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.”¹⁴ Further, the majority held the workers’ fundamental right to health and safety protection was guaranteed under article II, section 35 of the Washington Constitution, which says the Legislature “shall pass necessary laws for the protection of persons working in … employments dangerous to life or deleterious to health.” The dangerous nature of dairy work was thus central to the decision, as the majority noted: “[D]airy work is some of the most hazardous in the United States,” and “[o]vertime work is particularly injurious. …”¹⁵

THE HISTORY OF THE CASE—AND OF THE DEFENDANT DAIRY

Jose Martinez-Cuevas and Patricia Aguilar were the named plaintiffs in the class action lawsuit against DeRuyter Brothers. Martinez-Cuevas said he had been injured twice in 15 months while working at the DeRuyter dairy: In one instance, a cow stepped on his hand, and in another a cow kicked him in the shoulder, for which he was sent to the Sunnyside Hospital. He said he “almost always worked over 40 hours per week” at DeRuyter, was never paid overtime, and thought the long hours made him more susceptible to injury. Martinez-Cuevas had attended school through the fifth grade. He said in the time he had worked at the dairy, he knew of only two milkers who were “not Latino.”¹⁶ Similarly, Aguilar, who had attended Toppenish High School online, but did not graduate, said she knew of only one milker at DeRuyter who was “not Latino.” Aguilar said she had been injured four times in 15 months at DeRuyter, always by contact with cows, including once when a cow kicked her in the hand and once when a cow kicked her in the chest, both times while she was hooking up the milking machine. She said her mother had worked there too and had also been injured when cows pinned her against a wall while she was pushing them into one of two milking parlors at the DeRuyter dairy.¹⁷

The plaintiffs’ legal team at Columbia Legal Services (CLS) had examined Occupational Safety and Health Administration (OSHA) reports that DeRuyter submitted for 2014-2016. CLS estimated from these records that 75 percent of the accidents DeRuyter reported were related to contact with the dairy farm’s animals and that during those years, approximately 10 percent of the workers had suffered some sort of injury; some were injured more than once at the dairy.¹⁸

DeRuyter Brothers Dairy, the defendant in the case, was founded in 1976 with 90 cows and 40 acres of leased land on Van Belle Road in Outlook, Washington, by Jake and Nick DeRuyter, sons of Wilhelmus (Bill) DeRuyter. Bill had been born in Holland in 1926 and immigrated with his parents and siblings to Southern California after World War II. He and his wife later owned and operated a dairy in San Diego until he retired in 1976 and moved the family to Outlook.¹⁹ In 2005, Jake’s wife Geneva (Genny) Van de Graaf (now DeRuyter) filed articles of incorporation in Washington listing her and her husband as owners of the dairy.²⁰ By 2017, the farm had at least 3,100 Holsteins.²¹

By 2020, Dun & Bradstreet Hoovers reported the company had 70 employees and had generated $11.33 million in sales.²²

The intervention of the Farm Bureau on the dairy’s behalf against the dairy workers … began the latest clash in a half-century of battles between the Farm Bureau and legal services.

DIVERSE IMMIGRATION POLICIES

The Immigration Act of 1924, in effect until 1965, set immigration quotas to the U.S. from many countries, but favored immigrants from Northwestern Europe.²³ The period in which Bill DeRuyter, his parents, and siblings emigrated from Holland was not long after the Dutch famine of 1944-45, known as Hongerwinter (hunger winter) in the Netherlands. It took place toward the end of World War II, under the Nazi occupation and a blockade that cut off food from farm towns.²⁴ After the war, a new cohort of 80,000 Dutch immigrants came to the United States with Dutch government encouragement. Most, like the DeRuyters, settled in California, while others settled in Washington and six other states.²⁵

Immigration for Mexican people was more problematic during the same period. It was the era of the “Bracero Program,” which “set up a labor contracting system by which the U.S. government negotiated the temporary importation of 4.8 million Mexican workers to be used primarily in agriculture between the years 1942 and 1964.”²⁶ The contract bound the “guest worker” to perform consistent labor and then return to Mexico at the end of the harvest.²⁷The American Farm Bureau Federation extolled this “temporary” aspect of the program²⁸and the California Farm Bureau saw the virtue of the program as being the requirement that “braceros” had to stay in their jobs no matter what (as contrasted with domestic workers, who could relocate if they were dissatisfied with working conditions).²⁹ Of course, not all Mexican workers came to the U.S. via the Bracero Program, and many undocumented workers were periodically rounded up en masse and deported. In 1954, the Immigration and Naturalization Service (INS), through its Border Patrol, launched its offensively named “Operation Wetback,” which it claimed eventually seized 1.1 million “unauthorized Mexican immigrants” and took them back deep into Mexico’s interior.³⁰

These programs and operations created a highly vulnerable immigrant work force, reluctant to complain about their working conditions.

NEW ROUTES FOR OLD DISPUTES

Working conditions were at the root of the Martinez-Cuevas case, which began in Yakima Superior Court over the milkers’ claims that they were not getting rest breaks and meal periods mandated by state law, and were not getting paid overtime. The parties reached a court-approved settlement of the break and meal-time claims and stipulated to the class certification for the remaining overtime claims. After the plaintiffs filed for summary judgment on the overtime claims, the Washington State Dairy Federation and the Washington Farm Bureau intervened in the case on behalf of DeRuyter Brothers Dairy.

The intervention of the Farm Bureau on the dairy’s behalf against the dairy workers, who were represented in part by CLS, began the latest clash in a half-century of battles between the Farm Bureau and legal services. Lori J. Isley, an attorney with CLS, and Marc Cote of Frank Freed Subit & Thomas represented the plaintiffs. Timothy O’Connell, a partner at Stoel Rives, LLP, represented the intervening Washington Farm Bureau.

The American Farm Bureau Federation, the parent of the state farm bureaus, is an independent, nongovernmental, voluntary organization governed by and representing farm and ranch families.³¹ It was founded in 1919 as a “conservative alternative to the progressive Grange,” and it became a formidable force on Capitol Hill in mid-century.³² The Farm Bureau had actively opposed the Legal Services Corporation, which funded legal services for the poor, since the early 1960s. When California Rural Legal Assistance (CRLA), one of the earliest and most successful legal services offices, became deeply involved in representing farmworkers throughout the state, the California Farm Bureau urged then-Gov. Ronald Reagan to put a stop to it. In 1978, the Farm Bureau passed a resolution demanding that the federal government abolish LSC.

An elevated view of the Yakima Valley—a rich agricultural area that boasts a variety of farms, dairies, and many of the state’s oldest vineyards.

In the 1980s, the Farm Bureau launched another campaign to eliminate LSC because, in part, “Legal Services attorneys” were “stirring up controversy particularly among migrant and seasonal farm workers.”³³ Its most successful effort came in the mid-1990s when the GOP held a majority in Congress and the Farm Bureau pushed once again to eliminate LSC. In 1996, Congress slashed federal funding for LSC and imposed restrictions on what LSC-funded offices could do, including prohibiting them from representing undocumented workers, collecting attorney fees awards, and conducting class action litigation.³⁴

The slashed federal budget nearly wiped out federal funding for legal services in Washington (and elsewhere). Evergreen Legal Services, the federally funded program in Washington, had to be closed. But the civil legal aid community in Washington soon created two new legal aid agencies. One, the Northwest Justice Project (NJP), would get the limited federal funding still available and abide by the LSC restrictions.

The other would seek a separate stream of funding that would allow it to represent anyone who needed legal representation and to carry on, when necessary, class action litigation; that agency became Columbia Legal Services (CLS).³⁵ Years later, both entities would have an impact on dairy workers at DeRuyter Brothers Dairy. NJP brought a lawsuit against the dairy for one worker who was sexually harassed at the dairy. She was granted a Sexual Assault Protection Order and an award to compensate her for the harm caused by the harassment.³⁶ And CLS brought the Martinez-Cuevas v. DeRuyter Bros. Dairy lawsuit in Yakima Superior Court, seeking work breaks and meal periods and claiming in part that the statutory exclusion of farmworkers from overtime pay violated the equal protection provision of the state constitution.

CONCURRING AND DISSENTING OPINIONS

The concurring opinion in Martinez-Cuevas agreed that excluding farmworkers from overtime violated equal protection. The concurrence’s author, the Washington Supreme Court’s current Chief Justice, Steven González, held that because the privileges and immunities clause of the state constitution, art. I, section 12, prohibits discrimination, the Minimum Wage Act’s exclusion of farmworkers from overtime compensation was unconstitutional on its face.³⁷ The opinion reviewed the legislative history, during the New Deal, of the National Labor Relations Act, the Social Security Act, and the Fair Labor Standards Act (FLSA), which was enacted in 1938. The history showed that farmworkers had been excluded from the protections of these acts through racism which “directly influenced these exclusionary policies.”³⁸ Congressional proponents of these acts agreed to exclude agricultural workers, who were largely African American in the South, so that southern Democrats would support the legislation.³⁹ When the Washington Legislature enacted its Minimum Wage Act in 1959, it based that act on the FLSA and the farmworker exclusions that were part of it.⁴⁰

Economic concerns are undeniably significant in the dairy industry, which has historically been known for its booms and busts.

Justice González’s opinion notes that in Washington, 99 percent of farmworkers today are Latinx and more than three-quarters do not read or write in English. Because the overtime exclusion treated farmworkers, who are largely people of color and the sort of “politically powerless minority whose interests are a central concern of equal protection,” their exclusion from overtime pay violated the state constitution’s mandate for equality under the law.⁴¹

At oral argument, Justice González asked the Farm Bureau’s counsel if the justices could just ignore the national history of the FLSA and other New Deal legislation and its “underpinning” of excluding Black workers.⁴² Counsel replied, “Well, Your Honor, respectfully, I don’t believe that the conduct of Congress decades before [1938] our Legislature acted [1959] can be imparted to our Legislature, and the demographics of our workforce was different at the time our Legislature acted.” Counsel also said that the exclusion of Black workers from the FLSA was “not undisputed” and to the contrary it was “a highly contested matter.” He added that the “danger of farm working is plainly disputed” as well.⁴³

Justice Debra Stephens asked the first question of plaintiffs’ counsel at oral argument in the Martinez-Cuevas case—whether the purpose of the farmworker overtime exemption was to encourage more employment by limiting employees to 40 hours, so that the “extra hours” would be worked by additional employees. As appellate attorneys observe, the first question from the bench in oral argument often comes from the justice least convinced by your argument.

And indeed, Justice Stephens wrote the principal dissent in Martinez-Cuevas, which is the longest of the four opinions from the court. It marshalled decades of case law, including the Slaughter-House Cases, and decades of legal scholarship to support its conclusions: “In sum, I would hold that the agricultural exemption from overtime pay does not confer a privilege or immunity under article I, section 12 because no fundamental right is at issue.”⁴⁴ Further, Justice Stephens asserted that if “rational basis review” was applicable to the equal protection challenge to the farmworker overtime exception, then under that standard of review, “the legislature could have rationally concluded that lower operation costs may decrease the overall cost of agricultural commodities and these benefits may be passed on to Washington consumers. … Because the agricultural exemption is rationally related to legitimate governmental policy, I would hold” that the MWA’s exclusion of agricultural workers from overtime pay “does not violate article I, section 12 on state equal protection grounds.”⁴⁵

Justice Charles Johnson asked the second question at oral argument, and indeed he wrote the second dissent, which also focused on the economic aspect of the overtime exemption. Justice Johnson addressed only the issue of whether the majority’s holding on overtime pay would be applied retroactively or prospectively, which the majority opinion had stated was not properly before the court because neither side had raised it as an issue for review. He concluded that “Farm employers should not bear the overwhelming risk of financial devastation because they paid what the law required of them at the time. The balancing of the equities in this case requires the court to apply today’s decision only prospectively to future cases.”⁴⁶

Pictured on the steps of the Washington Supreme Court, this group includes plaintiffs Jose Martinez-Cuevas and Patricia Aguilar, attorneys Lori Isley and Marc Cote, Columbia Legal Services staff, and members of Familias Unidas por la Justicia.

THE DAIRY COMMUNITY IN THE PACIFIC NORTHWEST

Economic concerns are undeniably significant in the dairy industry, which has historically been known for its booms and busts, and it has become even more volatile in recent years.⁴⁷As a Seattle Times article noted at the beginning of 2020, “many Washington dairies are struggling.” But the article noted that the Pacific Northwest’s biggest dairy processor, Darigold, a farmer-owned cooperative, was still seeing sales increases and in 2019 reported “net sales of $2.3 billion, up nearly 8 percent from 2017.”⁴⁸ Darigold, the marketing and processing subsidiary of the Northwest Dairy Association (NDA), traces its roots back to the formation of the United Dairymen’s Association of Washington in 1918.⁴⁹ It has been a fixture in the dairy community ever since, including in the Yakima Valley.

Darigold was a big part of the 11th Annual Sunnyside Country Christmas Lighted Farm Implement Parade some years ago. Jake and Genny DeRuyter were the Grand Marshalls of the parade and led a procession of over 60 lighted farm implements and Christmas floats, including their own John Deere 3350 Low Operator. The Sweepstakes Award, however, went to Darigold’s float, “Flying Through the Milky Way.” It was lit up by thousands of tiny lights and was the company’s huge, creative take on Santa’s sleigh and reindeer. Instead of reindeer, though, there were six Holstein cows made from insulation foam, each cow 8 feet long and 6 feet high, pulling a 24-foot-long sleigh carrying “Mr. and Mrs. Santa Cows,” also Holsteins.⁵⁰That float must have been huge.

About the author

Marc Lampson serves on the Bar News Editorial Advisory Committee. He wrote a legal history of King County, From Profanity Hill: The King County Bar Association’s Story. He works as a review judge for the Board of Appeals at the Department of Social and Health Services in Olympia. He can be reached at:

mrlampson1@gmail.com

NOTES

1. Facts about dairy farms in Washington state, Washington State Dairy Federation: www.holsteinusa.com/pdf/fact_sheet_cattle.pdf.

3. Dairy Farm Safety: Key Hazards and Solutions. Washington State Dept. of Labor and Industries. National Ag Safety Database. Available at https://nasdonline.org/7337/d002534/dairy-farm-safety-key-hazards-and-solutions.html last retrieved 2/24/21.

4. Grout, L., Baker, M.G., French, N., & Hales, S. (2020). A review of potential public health impacts associated with the global dairy sector. GeoHealth, 4, e2019GH000213. https://doi.org/10.1029/2019GH000213.

5. Id.

6. Grout, L., et al., supra, n.4.

7. See, e.g., Dembe, A.E.; Erickson, J.B.; Delbos, R.G.; Banks, S.M. (September 2005). “The impact of overtime and long work hours on occupational injuries and illnesses: new evidence from the United States.” Occupational and Environmental Medicine. 62 (9): 588–97. doi:10.1136/oem.2004.016667. JSTOR 27732586. PMC 1741083. PMID 16109814.

8. Martinez-Cuevas v. DeRuyter Bros. Dairy, 196 Wn.2d 506, 475 P.3d 164 (2020).

9. Justice Madsen wrote the majority opinion, which Justices González, Gordon McCloud, Yu, and Justice pro tem Wiggins joined.

10. RCW 49.46.130(2)(g).

11. Martinez-Cuevas, 196 Wn.2d at 511, 526.

12. Current Chief Justice González wrote the concurring opinion, which Justices Gordon McCloud and Yu joined.

13. Then-Chief Justice Stephens wrote the first dissent, which Justices Owens, Johnson, and Justice pro tem Fairhurst joined. At the Supreme Court oral argument of the case, then-Chief Justice Fairhurst had presided.

14. Martinez-Cuevas, 196 Wn.2d at 511 (emphasis added).

15. Id. at 520.

16. Motion for Discretionary Review, Exhibit (Ex.) 12, “Declaration of Jose Martinez-Cuevas in support of motion for summary judgment.” Available at www.courts.wa.gov/appellate_trial_courts/coaBriefs/index.cfm?fa=coabriefs.searchRequest&courtId=A08.

17. Motion for Discretionary Review, Ex.16, “Declaration of Patricia Aguilar in support of motion for summary judgment.” Available at www.courts.wa.gov/appellate_trial_courts/coaBriefs/index.cfm?fa=coabriefs.searchRequest&courtId=A08.

18. Motion for Discretionary Review, Ex.18, “Declaration of Rachel Pashkowski in support of motion for summary judgment.” Available at www.courts.wa.gov/appellate_trial_courts/coaBriefs/index.cfm?fa=coabriefs.searchRequest&courtId=A08.

19. Wilhelmus (Bill) DeRuyter. (2008, December 10). Yakima Herald-Republic (WA). Available from NewsBank: Access World News: https://infoweb-newsbank-com.trl.idm.oclc.org/apps/news/document-view?p=AWNB&docref=news/125067F2A6C30110.

20. Sec. of State website, DeRuyter Farm Properties, Inc. (see articles of amendment in 2017) d/b/a DeRuyter Bros. Dairy, Inc.

21. Hoang, M. (2017, June 2). Report: Outlook dairy makes deal to sell. Yakima Herald-Republic (WA), p. 3A. Available from NewsBank: Access World News: https://infoweb-newsbank-com.trl.idm.oclc.org/apps/news/document-view?p=AWNB&docref=news/164ECA43F78B6410.

22. www.dnb.com/business-directory/companyprofiles.deruyter_brothers_dairy_inc.a0284c144e64775f2b2c8ab6b561246f.html.

23. Paul Spickard, Almost All Aliens: Immigration, Race, and Colonialism in American History and Identity (2007) 279-280. New York: Taylor & Francis Group.

24. Dutch famine of 1944-45. Wikipedia. https://en.wikipedia.org/wiki/Dutch_famine_of_1944%E2%80%9345.

25. Herbert J. Brinks. Dutch Americans. Countries and their cultures. www.everyculture.com/multi/Du-Ha/Dutch-Americans.html.

26. Justin Akers Chacon & Mike Davis. No One is Illegal: Fighting Racism and State Violence on the U.S. – Mexico Border (2006) at 140. Chicago: Haymarket Books.

27. Id.

28. Id. at 141.

29. Id. at 142.

30. Paul Spickard, supra n.23, at 305.

31. American Farm Bureau Federation: www.fb.org/about/overview.

32. Brennan Center for Justice at NYU School of Law. Hidden Agendas: What is Really Behind Attacks on Legal Aid Lawyers (2001) 9-14.

33. Id.

34. Id.

35. The Alliance for Equal Justice: Our Rich History: http://allianceforequaljustice.org/about/history/.

36. Northwest Public Broadcasting, Esmy Jimenez, In MeToo Era, A Yakima Valley Dairy Worker Finds Her Voice, Aug. 23, 2018, accessed at www.nwpb.org/2018/08/23/in-metoo-era-a-yakima-valley-dairy-worker-finds-her-voice/; Northwest Justice Project Annual Report, 2018, available at https://view.publitas.com/njp-annual-reports/njp-annual-report-2018-new/page/4-5.

37. Martinez-Cuevas, 196 Wn.2d at 526-27 (González, J., concurring).

38. Id. at 528-29 (González, J., concurring).

39. Marc Linder, Migrant Workers and Minimum Wages: Regulating the Exploitation of Agricultural Labor in the United States 8-13 (1992); Juan F. Perea, “The Echoes of Slavery: Recognizing the Racist Origins of the Agricultural and Domestic Worker Exclusion from the National Labor Relations Act,” 72 Ohio St. L.J. 95, 98-99, 104 (2011), cited in Martinez-Cuevas, 196 Wn.2d at 528-29 (González, J., concurring).

40. Martinez-Cuevas, 196 Wn.2d at 530 (González, J., concurring).

41. Martinez-Cuevas, 196 Wn.2d at 531-32 (González, J., concurring).

42. Systemic racism and the court’s obligation to combat it was the topic of the Washington Supreme Court’s June 2020 open letter to the judiciary and legal community, which it had posted six months before the court filed its decision in Martinez-Cuevas.

43. Washington Supreme Court oral argument: Jose Martinez-Cuevas v. Deruyter Brothers Dairy, Inc., et al., available at TVW.org: https://www.tvw.org/watch/?eventID=2019101067, at approximate recording time of 00:35:12 – 00.37:12 (note: machine-generated transcriptions are not an official transcript of the video).

44. Martinez-Cuevas, 196 Wn.2d at 551-52 (Stephens, C.J., dissenting).

45. Martinez-Cuevas, 196 Wn.2d at 560 (Stephens, C.J., dissenting)(emphasis added).

46. Martinez-Cuevas, 196 Wn.2d at 563 (Johnson, J., dissenting).

47. Paul Roberts. “Many Washington dairies are struggling. Here’s why and what farmers are doing to survive.” Seattle Times, Jan. 18, 2020, available at www.seattletimes.com/business/agriculture/many-washington-dairies-are-struggling-after-years-of-trade-wars-and-low-milk-prices/.

48. Id.

49. Darigold: About Our History: www.darigold.com/about/our-history/.

50. “Lighted Farm Implement Parade Winners Named.” Yakima Herald-Republic (WA), Dec. 9, 1999: 3V-1. NewsBank: Access World News. https://infoweb-newsbank-com.trl.idm.oclc.org/apps/news/document-view?p=AWNB&docref=news/0FCDEA1A2F789272;STOVER. “Sunnyside’s Shining Lights — Once again, Lower Valley town will bring the holiday spirit to light with the Lighted Farm Implement Parade.” Yakima Herald-Republic (WA), Dec. 2, 1999: 1V-1. NewsBank: Access World News. https://infoweb-newsbank-com.trl.idm.oclc.org/apps/news/document-view?p=AWNB&docref=news/0FCDEA27153E365C.

The Washington Supreme Court’s foundation-shaking decision in Martinez-Cuevas v. DeRuyter Bros. Dairy holds dairy workers entitled to overtime protections

BY MARC LAMPSON

MAJORITY OPINION FAVORS FARMWORKER OVERTIME PAY

THE HISTORY OF THE CASE—AND OF THE DEFENDANT DAIRY

DIVERSE IMMIGRATION POLICIES

NEW ROUTES FOR OLD DISPUTES

CONCURRING AND DISSENTING OPINIONS

THE DAIRY COMMUNITY IN THE PACIFIC NORTHWEST

NOTES

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The Washington Supreme Court’s foundation-shaking decision in Martinez-Cuevas v. DeRuyter Bros. Dairy holds dairy workers entitled to overtime protections

BY MARC LAMPSON

MAJORITY OPINION FAVORS FARMWORKER OVERTIME PAY

THE HISTORY OF THE CASE—AND OF THE DEFENDANT DAIRY

DIVERSE IMMIGRATION POLICIES

NEW ROUTES FOR OLD DISPUTES

CONCURRING AND DISSENTING OPINIONS

THE DAIRY COMMUNITY IN THE PACIFIC NORTHWEST

NOTES

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