During FDR's efforts to create fair workforce legislation and negotiations with the South for the New Deal, he appeased southern opposition by exempting farms from having to pay a minimum wage or overtime. The practice legally continues nationwide and "down on the farm" of Republican candidate Joe Blystone.
To enact the social and economic reforms of the New Deal, President Roosevelt and his allies were forced to compromise with southern congressmen. Those congressmen negotiated with Roosevelt to obtain modifications of New Deal legislation that preserved the social and racial plantation system in the South-a system resting on the subjugation of blacks and other minorities. As a result, New Deal legislation, including the FLSA, became infected with unconstitutional racial motivation. Texas Law Review, Farm Workers and the Fair Labor Standards Act: Racial Discrimination in the New Deal
Joe Blystone is competing for the Republican nomination for governor along with Jim Renacci against the sitting governor, DeWine. He is facing charges that he owes several employees overtime from work performed at his restaurant. Blystone allegedly claims that because it's "agricultural," he is not bound by the Federal Labor Standards Act. He doesn't have to pay minimum wage or overtime as provided by the FLSA.
Blystone may be right.
Per ORC 4111.03, Blystone quotes,
" Any employee employed in agriculture shall not be covered by the overtime provision of this section." The candidate responded further quoting law, "FLSA. raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations."
Blystone operates a family-owned farm which includes a butcher shop, bakery, steak house and events center. They also operate a nonprofit established in 2020 to educate the community, particularly children, on the farm experience. The average person would consider the operation of these business ventures separate and apart from farming. None are required operations necessary to farm. Generally, farming does not include the cooking and serving of food products, many of which are shipped in, not from the farm itself. However, the law is unclear and there are no Advisory Opinions issued by the Department of Labor that make the issue clear cut. However, the DOL website has this opinion that describes employees as:
Agriculture includes farming in all its branches when performed by a farmer or on a farm as an incident to or in conjunction with such farming operations.
Indeed, the query is not settled law. The feds acknowledge that there is an ongoing investigation of the complaint that was rejected by Ohio authorities despite the website of the Ohio Department of Commerce, Industrial Division, Wage and Hour Section stating that it investigates these matters. The complaint now rests with federal authorities, the US Department of Labor, but they are not permitted to release information when there is an ongoing investigation. The letter dated August 25, 2021, confirming the existence of an investigation states:
WHD (Wage and Hour Division) is denying your request in full pursuant to ... to protect information which could reasonably be expected to interefer with enforcement proceedings.
Until the investigation is complete the DOL can not release any information substantiating or denying the complaint. The Facebook page, Joe Blystone Facts, made the Freedom of Information Act request for documents and posted to their page portions of the complaint filed with the Ohio Department of Commerce.
The anonymous complainant states in the filing, in part, that:
Over the course of my employment with Blystone, I worked an average of 110 hours every 2 weeks. Throughout my employment, there were several times I questioned Joe Blystone about overtime pay, and I was always told that because he was agricultural, he is not required to pay overtime.
The complainant alleges that Blystone Farms owes them thousands of dollars in overtime pay over the course of 3 years and that they were not engaged in any farming activities, but served as a waitress and Front Room Manager for the restaurant. Other former employees have come forth supporting the assertions.
Until the Department of Labor makes a determination, we won't know if denying overtime pay, and paying such meager wages, is legally right or wrong. However, regardless, even if this is legal doesn't mean that just because you can, you should.
This is an outdated law. Its Jim Crow intentions are clear. There is no justification for exempting farmworkers from fair wages. After all, where would the farming "job creators" be without the "essential workers"? They plow the Earth, harvest the crops, and prep the goods for distribution while providing farmers their wealth and allow them - together - to feed the world. The real political question here is, which candidates, on the state and federal level, are going to support rescinding these rules designed to preserve oppressive plantation practices and grant all workers an honest day's pay, for an honest day's work?