State may lower overtime threshold for farm laborers, bypasses December deadline

The state’s Farm Laborers Wage Board plans to hold more hearings in January on potentially lowering the overtime work threshold for farm laborers from 60 to 40 hours per week, bypassing a Dec. 15 legal deadline.

The hearings will include testimony from farm laborers, agricultural employers, academic experts and elected officials, among others, according to the state. The Department of Labor did not elaborate on reasons for the extension in a statement emailed to Times Review.

“As contemplated by and in line with her previous Order, on Wednesday, December 15, 2021, New York State Labor Commissioner Roberta Reardon announced the reconvening of the wage board, and that the wage board would hold public hearings to hear testimony to consider the existing overtime threshold for farm laborers and the extent to which the overtime threshold may be lowered in New York State,” a spokesperson said. 

Farm workers began to earn overtime, or time-and-a-half, after 60 hours per week with the start of 2020. 

The existing 60-hour threshold was established under the Farm Laborer Fair Labor Practices Act, signed in 2019. The legislation also sets a day of rest, the right to collective bargaining and increased insurance requirements for most non-supervisory, non-family farm employees.

The potential change has been met with mixed reactions from farmers and laborers.

Farmers have expressed concern about increased operational costs, with many pointing to a Farm Credit East report that estimates reducing the overtime threshold from 60 to 40 hours per week, with minimum wage increases, could cause labor costs for farms to increase about 17%. Labor groups, on the other hand, have argued that farm workers should be extended the same rights as laborers in other industries.

A state-commissioned study from Cornell University found that, with the 60-hour overtime threshold and minimum wage increases, total wage expenses from 2019 to 2020 increased 6.8% on fruit farms and 10.1% on vegetable farms. Total payroll increased 7.8% on dairy farms. 

The November report — in addition to using secondary data, including from Farm Credit East — interviewed 40 New York farm operations, split evenly between dairy farms and fruit/vegetable farms. Researchers also interviewed H-2A workers from farms in the western, central and Hudson Valley areas of the state. According to the state, the federally sponsored H-2A program is “used to bring temporary, nonimmigrant foreign workers into the U.S.”

Half of the fruit and vegetable farms interviewed in the Cornell study indicated a 40-hour work week would push them to shrink their operations enterprises or exit the industry. Two-thirds, or 13 out of 20 twenty dairy farms interviewed indicated they would either move out of milk production, direct future dairy investment to other states, invest outside of dairy or exit agriculture entirely.

Seventy-two percent of interviewed H-2A workers indicated they would be less likely to do their current job if their hours were capped at 40 per week. Seventy percent indicated they’d consider moving to a state without capped hours. 

“When considering their response to potential overtime thresholds lower than 60 hours, many farms would look to hire more employees but worry about availability and cost,” the study says.

The study’s conclusion notes that the implementation of overtime laws in 2020 caused managers to tighten “the allocation of labor” and substitute “labor-saving technology where possible.” A 40-hour threshold might lead many farm managers to shift towards crops and enterprises that are more easily mechanized. It could also redirect agricultural investments out of state or, if managers cap hours, impact farms’ ability to attract H-2A workers.

“Farming is inherently risky. There are many seasons when a farmer may not break even and they hope to recover their losses the following season from a bigger crop or a rise in commodity prices,” Long Island Wine Council president Kareem Massoud said in a Guest Spot column (see page 8).

He originally responded via email to a request for comment on the pending decision, but later submitted his remarks to the editor because he feels it’s important they’re presented in their full context. 

“Over the last five years, most farmers have seen their payroll expense increase by 50% or more since many agricultural workers are paid minimum wage and minimum wage has increased by 50% over the last five years,” he said. “This alone would make for a challenging labor environment.”

He added that most farmers on Long Island compete in the same labor pool as landscaping, construction, restaurants and other industries, and the demand for workers has added pressure to wage growth. “Wineries and other farmers are not always able to raise prices at the same rate, sometimes not even close,” he said. 

He argued that employees can’t work in bad weather, meaning production can halt for sometimes a week at a time. The work that needs to be done remains the same, meaning laborers might need to put in extra hours to complete their tasks, he said.

“Wineries and other farmers provide workers’ compensation insurance, disability liability insurance, unemployment insurance and all other state and federal requirements, as required by law. The only difference has to do with overtime pay,” he said, adding that the overtime law will push farmers to limit the hours worked to keep costs under control.

“Our agricultural workers are dedicated, hard-working individuals doing what all of us are trying to do: Make a better living for themselves and their families. This includes putting in as many hours as they desire so that they can generate greater income for themselves,” he said. “If the overtime threshold is lowered to 40 hours, you can be sure that employers will react in similar fashion by limiting hours even more, to even greater detriment of agricultural workers’ livelihood.”

The first agricultural labor union in the state was established at Pindar Vineyards in Peconic earlier this fall, under Local 338 of the Retail, Wholesale, Department Store Union/United Food and Commercial Workers Union.

“Unions like ours fought for a 40-hour work week to ensure workers would have time for their responsibilities at home,” union president John Durso said in an emailed statement. “When work takes them away from that they must be compensated with overtime pay rates that allow for their families to be supported without them there.”

He added that overtime pay is often used for child and elder care costs when workers can’t be home.

“It’s a small cost to the employer compared to the profits a 60+ hour work week brings to them,” he said. “Workers in many of New York’s industries are afforded this right; farm workers need it too. We will fight at the bargaining table to protect what we’ve long held for our new members, but farmworkers across the state need to be treated with that same dignity and respect and get the same overtime pay others do.”

The Farm Laborers Fair Labor Practices Act should provide the same overtime pay laws to farmworkers, he said.