Farmers harvesting organic squash in field

Farmers harvesting organic squash in field on foggy fall morning

The head of New York’s largest farmer-based organization says lowering the overtime threshold to 40 hours per week would put farms out of business and eliminate jobs for people the proposal is intended to benefit. New York Farm Bureau President David Fisher is part of a three-member Farm Laborers Wage Board that heard testimony throughout 2020 on possibly lowering the current 60-hour overtime law.

The 60-hour provision was one of several measures including a mandated weekly day of rest, paid family leave, paid sick time and farmworkers’ right to organize, in the Farm Laborers Fair Labor Practices Act, which took effect last Jan. 1.

The Wage Board, after soliciting testimony in a series of public hearings, was charged with making a recommendation by Dec. 31, 2020 about whether the overtime threshold should be lowered further, perhaps to 40 hours per week.

The ultimate decision rests with state Labor Commissioner Roberta Reardon.

The Wage Board is chaired by Brenda McDuffie, Buffalo Urban League president and CEO. In addition to Fisher, representing agriculture, it includes labor representative Denis Hughes, former New York State AFL-CIO president. The Wage Board met virtually on Dec. 28.

“We need to be careful how quickly we move on things like this,” Fisher said. “It’s pretty hard to make decisions like lowering to 40 hours if it puts farmers out of business.”

New York Farmers Are Still Adjusting to New 60-Hour Overtime Rule 

Farms across New York, from Long Island to the Niagara region, are still adjusting to the new 60-hour rule, which scores of dairy, fruit and field crop producers opposed during the hearing process. Farmers say the new 60-hour rule has cost them tens of thousands of dollars in extra labor expense, cutting into profits at a time they could least afford it as prices for milk and fresh produce fell because of the COVID-19 pandemic.

New York's New Overtime Rule Could Influence Foreign Laborers Coming to the U.S. to Farm 

Also, farmers argue that foreign laborers come to the U.S. hoping to work and make as much money as possible, which they can send home to their families.

“Thousands of workers come here from other countries,” Fisher said. “This is what provides them a standard of living and a way to raise their family successfully and take wealth back home to those other countries. If they don’t come here, they may grow crops down there and make as much in a week as we pay them in an hour. So what do we really gain by not carefully assessing the situation? Thousands of people are worse off than they would be.”

Could a 40-Hour Overtime Threshold Be Next For All Industries in New York?

But Hughes, while agreeing with Fisher’s call for a pause in decision making, said the state’s ultimate goal should be a 40-hour overtime threshold for all industries, including agriculture. Until this year’s new state law took effect, New York agriculture was exempt from wage and hour rules under the national Fair Labor Standards Act of 1938.

“We understand that you’re in a bind at this particular point,” Hughes told Fisher. “But now that you’ve enjoyed 80 years of exemption from these laws, we have to figure out a way to phase you in to have parity with other workers in this state.”

Other industries such as restaurants and food service have also struggled during the pandemic, but still managed to operate with the 40-hour overtime threshold, he said.

The state should perhaps look at other ways to protect agriculture without exempting workers from the rights enjoyed by laborers in other industries, Hughes said.

McDuffie didn’t specifically cite 40 hours as a target but called for “some sort of staggering of timing on getting to the place we want to get to.”

“I think at the heart of our decision should be the quality of life we give people, and that we provide each individual with their value and demonstrate how we value their work through how they’re paid,” she said.

Ultimately, the goal should be to keep agriculture strong, but afford workers all the compensation and rights they’re due, McDuffie said.

New York Farm Bureau's Decision Making Affected By COVID Pandemic  

But Farm Bureau, as an organization, says this past year’s growing season did not provide enough time or data about the effects of the new 60-hour rule to make an informed decision about reducing the overtime threshold further.

“Farmers, employees, labor groups and lawmakers all agreed last year that 60 hours was a reasonable threshold,” spokesman Steve Ammerman said. “But lowering it further will likely make things more difficult for workers and farmers. Employees testified they would leave the state to find more available hours elsewhere, often in states with fewer labor protections than here in New York.”

“This has all played out in an extraordinary year where a New York Farm Bureau survey found two-thirds of farms were negatively impacted by the pandemic,” he said. “Food insecurity and the reliance on local food drives have climbed. All of this while the farm community has been proactive in protecting farmworkers and mitigating the spread of the virus. Farm Bureau is simply asking for time. We need to understand the long-term economic fallout and how labor is faring under the new law for the betterment of all New Yorkers who depend on local agriculture.”

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