Dairy, fruit and crop farmers across New York are overwhelmingly opposed to further reducing a new 60-hour overtime limit for farm workers.
The 60-hour threshold was one of many provisions, including a mandated weekly day of rest and giving workers the right to organize, included in the Farm Laborers Fair Labor Practices Act, which took effect Jan. 1.
A three-member state Wage Board is charged with soliciting testimony and recommending by Dec. 31 whether the overtime threshold should be even lower, perhaps to 40 hours per week.
But farmers say the new 60-hour rule is already costing them tens of thousands of dollars in extra labor expense, cutting into profits at a time they can least afford it as prices for milk and fresh produce have been greatly impacted by the COVID-19 pandemic.
“The result of any lowering of the threshold will result in farmers using mechanization to trim hours,” said Rob Carpenter, of Long Island Farm Bureau administrative director. “This will directly impact the people you will be trying to help, the workers themselves.”
He was among dozens of people who testified during a series of recent virtual hearings held on Zoom from Aug. 26-31. Hearings were originally scheduled in cities across the state and began Feb. 28 in Albany. But others were postponed by the pandemic until this past week’s series of virtual hearings.
Fruit farmers, with harvest season at hand, say new overtime regulations are especially burdensome.
“We have about an eight-week period to bring in our entire crop, 22 million apples on our farm alone, all picked by hand,” said Jesse Mulbury, New York Apple Association chairman of Peru, Clinton County, near the Canadian border. “We can’t afford to pay overtime on mandated rest days, so we’re basically losing a day a week. That’s 14% of our harvest time for this season. On top of that, COVID has drastically complicated our harvest logistics, making it extremely difficult to move people around and do so in a safe and healthy way for everybody. We’re already not sure we’re going to be able to get this harvest in.”
His farm has 175 employees including 135 seasonal H-2A workers who are paid $14.29 per hour.
“The simple solution would be to pay more (for overtime), but in the apple industry we are price takers and not price makers,” Mulbury said. “We’re at the mercy of grocery chains, which are consolidating more and more every year like the purchase of Whole Foods Market by Amazon.com.”
Farms also give H-2A workers free housing and pay transportation costs to and from their respective homelands. With visa and agency fees factored in, the hourly cost to farms is roughly $19 per hour for each worker, said John Teeple, a western New York apple grower.
The full impact of the new 60-hour overtime rule won’t be known until after this year’s harvest, he said.
“We must remain competitive with other apple growing areas around the country or we’ll be priced out,” he said. “The industry needs at least three to five years to study and adjust to the current 60-hour threshold.”
Many dairy farm employees come from Mexico and Central America and send earnings back home to help their families escape poverty. But farmers say key workers are going elsewhere because they can’t make as much money under the new overtime rules.
“Our most experienced herdsman left us because we could not allow him to work the hours he had been,” said Mike McMahon, a central New York dairyman and Cortland County Industrial Development Agency chairman. “A neighboring farm had six workers walk out on the last day of 2019 because their hours were being cut back in order for that farm to survive financially. A great deal of the upstate New York economy is geared to the agricultural engine. To continue in this vein of pushing the overtime limit back toward 40 hours is a recipe for disaster.”
Some farms have hired extra employees just for cleaning purposes to keep work spaces and vehicles safe and healthy during the pandemic. This plus the cost of cleaning supplies is another expense they can ill afford on top of higher wages, farmers say.
Dr. Ed Zureweste, a board-certified family physician and founding medical director of the Migrant Clinicians Network, was one of the few people who spoke out in favor of a lower overtime threshold.
“We do know that farm work has one of the highest mortality rates of any industry in America,” he said. “Centers for Disease Control data shows that about 100 farm workers suffer a lost work time injury every single day. Given the dangers of farm work, it’s concerning to me that we continue to make these work-related exceptions for agriculture.”
Allowing people to work continual long, hard hours leads to many serious health problems, he said.
“Limiting the hours of workers has been a cornerstone of our labor laws since the 1930s,” Zureweste said. “As a society we have moved away from work weeks longer than 40 hours without overtime payment. We cannot continue to abuse farm workers, putting their health at risk without giving them parity with other industries.”
But western New York vegetable farmer Dennis Brawdy said, “It’s unfair to select one state and put us under a different set of rules than anybody else that we compete with in the markets we supply on the Eastern Seaboard.”
Assemblyman Billy Jones, D-Chateaugay Lake, represents northeastern New York including the agricultural-rich Champlain Valley.
“Now is not the time to reconsider the overtime threshold,” he said. “Farmers across New York are facing unprecedented challenges during this pandemic to make ends meet. Farmers are worried about their futures, about feeding their families, about feeding New Yorkers. To put it simply, changing the overtime threshold during a pandemic will only hurt farmers who are already struggling to make ends meet. Farmers are continuously at the mercy of the market and have zero control over demand. Cows must be milked, crops must be tended to and animals must be cared for regardless of what is going on in the economy. This is the time to show our support for farmers and the agricultural industry as a whole, not create difficult labor standards that make it impossible for farms to survive.”
The three-member Wage Board is chaired by Brenda McDuffie, Buffalo Urban League president and CEO, and includes New York Farm Bureau President David Fisher and labor representative Denis Hughes, New York State AFL-CIO president.
The Wage Board will submit its report and recommendation to state Labor Commissioner Roberta Reardon who will decide whether the overtime limit should be changed.