The two-and-a-half-year debate to potentially lower the state’s agriculture overtime threshold to 40 hours just got longer.
The Farm Workers Wage Board under the state Labor Department will hold three additional public hearings next month before deciding to accept or reject a proposal to lower the agriculture overtime threshold to 40 hours from its current standard of 60.
The Wage Board was slated to vote on or before Wednesday, but state Labor Commissioner Roberta Reardon posted an announcement on the department’s website late Tuesday the board will hold three more virtual hearings at 3:30 p.m. Jan. 4, 5 p.m. Jan. 18 and at 5 p.m. Jan. 20.
“Testimony will be heard from farm laborers, agricultural employers, academic experts and elected officials, among others,” according to the notice posted on the department’s website.
The department did not publicize the postponement, which came as a surprise to farmers, activists and lawmakers both in favor of and against lowering the threshold. Many said they did not know why the decision was delayed after months of waiting for the Wage Board to reconvene.
“We were waiting for word just like everyone else,” NY Farm Bureau spokesman Steve Ammerman said Wednesday.
The Wage Board did not publicly meet or discuss the additional hearings or delay.
Labor Department officials continue to negotiate the issue behind closed doors. Department officials would not respond to questions Wednesday about why the vote was postponed or the date the board must make a decision in 2022.
Department officials repeated the same statement several times this month, and to multiple media outlets, in response to questions about the issue.
“We will provide an update when we have one,” Labor Department spokesperson Deanna Cohen said.
The now years-long debate is centered on farm workers who want overtime pay after 40 hours to be equal with laborers in other industries, and fervent pushback from small- to mid-sized farmers who say they cannot afford the resulting estimated 42% cost increase.
Thirty-four unions, immigrant rights and other organizations recently sent letters to Gov. Kathy Hochul urging for overtime pay after 40 hours. Hundreds of letters from farmers and farm laborers against the decision were hand-delivered to Hochul’s office Dec. 1.
A recent state-commissioned report released by the Cornell’s College of Agricultural & Life Sciences, which has been met with blowback and questions about its bias and validity, projects many farms across the state will be forced to close or shrink their enterprises if the 40-hour week for farm workers is implemented.
Farmworkers, unions, medical experts, civil liberties advocates and others New York chapter of the American Civil Liberties Union rallied to fight for fair labor conditions for farmers in support of lowering the overtime threshold.
“Rodolfo Mendez, a farm worker at Pindar Vineyards, Suffolk County, and member of Agricultural Workers United, works 56 hours per week.
“I do not get overtime pay even though I work six days a week,” Mendez said in Spanish through a translator. “My co-workers and I ... are fighting for our rights and basic protections and sick pay, and what’s most important, is dignity and respect in the workplace. It’s time that our state lowers our threshold of overtime to 40 hours per week.”
Recent research from the Economic Policy Institute shows farm workers are among the lowest-paid workers in the U.S. workforce, earning $14.62 per hour on average in 2020, which is just 60% — or three-fifths — of what production and nonsupervisory nonfarm workers earned at $24.67.
Mendez has worked as a farm laborer for six years, and said the work is sometimes dangerous, coupled with extreme weather and equipment.
“Very few people want to work in the industry,” he said. “We’re not receiving the same as other industries in New York. We are not compensated adequately for our hard labor. Lowering the overtime threshold will change the lives of farm workers.”
Activists highlighted the history of state labor laws rooted in racial divide as undocumented immigrants make up the majority of farm laborers.
The labor of human beings not considered a commodity or article of commerce was enshrined in the state Constitution more than 85 years ago, and added to the state Bill of Rights when thousands of Americans worked between 60- and 70-hour weeks in factories and sweatshops, endangering their health and wellbeing, New York Civil Liberties Union Senior Attorney for Legislative Affairs Lisa Zucker said.
The practice continues in the agricultural industry.
“Eighty-five years later, this Jim Crow policy is so baked into farmers’ business plans, they claim they can’t survive without it,” Zucker said. “No one is saying that farmers that farm owners are racist, but the exclusion of farmworkers is the very definition of structural racism pervasive policy that has been allowed to continue for so many generations.”
The Grow NY Farms coalition responded to the activists’ press conference in a statement, saying the speakers at the event prove they do not understand the agricultural industry, which cannot be compared to retail or resorts.
“We are not saying overtime does not apply to us, we are saying the Wage Board should respect the compromise reached in 2019 that established the 60-hour threshold and listen to the testimonies from farmworkers and farmers to maintain the threshold,” according to the coalition. “Markets will not adapt. Farms compete in a global market against other states and countries who do not limit hours. Consumers will not ‘reward’ farms who pay more overtime. After years of economic hardship the bottom line will win out in the marketplace. Farms will be forced to adapt. They will cap hours and turn to less labor-intensive crops. Those that can afford it will invest in existing technology. Others will choose to move out of state or leave agriculture entirely.”
Activists countered Wednesday fair pay for farm workers is possible, citing data from states that have successfully made the change.
California phased in a lower overtime threshold for farmworkers over a four-year period between 2019 and 2022 to 40 hours. California’s farm economy and labor market indicators have remained steady amid the changes, including the same number of average hours worked by farm laborers and number of farms and agricultural businesses, according to Nov. 16 testimony from the Economic Policy Institute.
Washington state is set to follow in California’s footsteps. A proposed bill in the Oregon would also reduce the state’s farm overtime threshold.
A 40-hour workweek is possible though farmers must work more during certain seasons and weather patterns, said Paul Sonn, the state policy program director with the National Employment Law Project, adding many industries staff their operations around the clock such as hospitals, or landscaping and construction that are also weather-dependent.
Industries pay seasonal spikes and staff up in different seasons depending on their business, but still operate under a 40-hour overtime, Sonn said.
The Farm Bureau also countered that comparing agriculture to other industries is not the same.
“Constructions can be stopped without the product being lost,” Ammerman said. “Food processors can keep product in storage, so it doesn’t immediately spoil, seasonal retail work is not impacted by severe weather or loss of product. Farmworkers help care for dairy cows around the clock. Ripe fruit doesn’t wait an extra day to be picked on time. Planting itself depends on a tight schedule and optimal weather conditions. There is truly no profession like agriculture.”
The state Department of Agriculture & Markets is encouraged by the additional public hearings to discuss the overtime threshold, department spokesperson Jola Szubielski said Wednesday.
“The department is not involved in the wage board or its decision-making,” Szubielski said in a statement. “The department is encouraged, however, that the board is meeting several times over the upcoming weeks as we believe this will provide them the additional time needed to ensure a comprehensive and thorough review of the data and reports presented.”
Republican members of the Assembly Agriculture Committee, including Assemblymembers Stephen Hawley, R-Batavia; and Chris Tague, R-Schoharie; commended the Wage Board for taking additional time to weigh all sides of the issue.
“To apply conventional, state-mandated criteria to an unconventional industry is a recipe for disaster,” committee members said in a statement. “The struggles of New York’s family farms are well-documented. If members of the Wage Board approve this costly, unnecessary regulation, they will not only compound a problem, they will send family farms out of existence.”
Senate Agriculture Committee member George Borrello, R-Sunset Bay, agreed the additional hearings are a sound decision.
“A decision with such far-reaching and potentially devastating consequences deserves the full and vigorous review that only a public forum can provide,” Borrello said Wednesday. “That said, I firmly believe that the facts and feedback from farmers, farm workers and those closest to the industry will overwhelmingly show that lowering the threshold would be catastrophic for the sector. If the overtime limit is lowered further, not only will farming cease to be financially viable for many families, it will accelerate the exodus of farm workers from New York to other states where they can work more and earn more.
“The hearings in January will offer added opportunities for all involved to weigh in on this critical issue,” he added. “I am confident that as long as the data and honest feedback are allowed to drive the decision and not radical, special interests, maintaining the 60-hour threshold will be the unanimous conclusion of the board.”
The current 60-hour threshold was established under the 2019 Farm Laborers Fair Labor Practices Act, and took effect in January 2020.
The Labor Department was set to hold a Wage Board hearing 18 months after the law’s passage, but was delayed amid the COVID-19 pandemic. Hundreds of farmers, labor groups and workers on both sides of the issue submitted public input in series of hearings for more than 10 hours last year.
For more information about the virtual hearings or to register to testify, visit dol.ny.gov/farm-laborers-wage-board-hearings