Overtime regulations for farm laborers in New York could be brought into line with those seen in other industries if the state adopts recommendations issued this week.
The state Wage Board voted Tuesday to recommend lowering the threshold of hours worked by farm laborers before they can be paid overtime.
The decision is now in the hands of State Department of Labor Commissioner Roberta Reardon. If approved by Reardon in the next 45 days, it will be up to Gov. Kathy Hochul to decide whether the threshold will go from 60 hours per week to 40 hours over the span of the next decade.
The recommendation passed 2-1 among the panelists picked to study the issue.
The board’s suggestion is to phase in the new rules beginning on Jan. 1, 2024 with the threshold set at 56 hours. From there, the threshold would be reduced by four hours every two years, culminating in an overtime threshold set at 40 hours per week in 2032.
This would cap years of advocacy from farmworkers and fair labor advocates to procure better labor protections for farmworkers.
Brenda McDuffie, one of three members of the Wage Board and the former Buffalo Urban League President and CEO, said the board considered testimony from farm laborers, farmers, advocates, and agriculture interest groups into account when reaching their determination.
The board held three public hearings earlier this year and at the end of last year. It heard comments from agricultural workers in favor of the reduction of the overtime limit, as well as staunch opposition to these changes from farmers and some seasonal farmworkers.
“It is our duty to protect thousands of farmworkers and align their rights with those in other industries,” McDuffie said. “We also have a duty to protect the farmers who are a significant part of our state’s economy and responsible for feeding New Yorkers and beyond.”
For farm labor and immigration advocates, the Wage Board’s decision is a compromise that allows farmers and workers to move forward, after state officials have discussed the overtime threshold for three years since the passage of the Farmworkers Fair Labor Practices Act.
The bill was signed by Gov. Andrew Cuomo in 2019 and guarantees labor standards such as collective bargaining rights, one mandated weekly day of rest, and eligibility for unemployment insurance and workers’ compensation for farm laborers working in any of New York’s farms.
“The tools are there for the New York Farm Bureau and farmworkers to work together to make New York agriculture strong,” said Richard Witt, the executive director of the Rural Migrant Ministry, which advocates for migrant farmworkers. “This is something that will be eased in, so it’s not going to all of a sudden knock farmers over and it gives us a chance to really create a strong agricultural system in New York.”
The Wage Board’s decision is seen as damaging to New York agriculture by some farmers, whose representatives forecast substantial increases in labor cost.
Based on a presentation by economic analyst Chris Laughton, also the director of knowledge exchange at Farm Credit East, lowering the overtime threshold, alongside planned increases to the state’s minimum wage, would result in an average 42% increase in labor costs for farmers. This would in turn bring down farm income by an average of 20%, Laughton predicts.
Despite these challenges, Witt emphasized the need to account for workers’ rights in any potential solution.
“We can’t justify making a system work on the backs of farmworkers,” he said. “It’s up to all of us consumers, academics, farmers, to figure out how to create a system that works and is just. The de facto point is that ‘we can’t afford this overtime threshold’ is grossly unfair for the farmworkers.”
A report prepared by DOL for the Wage Board notes increased labor costs could be offset by three government solutions. The first is the Investment Tax Credit expanded upon through the state’s 2022 budget from 4% relief to 20%, which the Wage Board report suggests could encourage automation of farm production.
In a survey that canvassed 40 New York farms, conducted by Cornell University economist Christopher Wolff, some respondents indicated they will continue to pursue automation projects regardless of where the overtime threshold stands.
The DOL report also points to the increase of the Farm Workforce Retention Tax Credit this year, which provides a tax break of $1,200 per employee.
This year’s state budget also included an overtime tax credit for overtime wages, offsetting social security and Medicare taxes paid on said wages.
New York Farm Bureau President and Wage Board member David Fisher was the sole opposing vote to the recommendations made to Commissioner Reardon.
Fisher said the deck was stacked against his position, to maintain the current overtime threshold. Fisher alleged the report filed by DOL failed to recognize the breakthroughs in labor protections made recently, including higher wages and new safety training, and developments in the field of human resources for farm laborers.
“No matter the outcome today or in the coming weeks, one thing we can all agree on is how valuable our employees are to the work of feeding our fellow New Yorkers,” he said.
“Farmers cannot do it without them, and we will continue to stand with them and do the best we can to provide our employees with good jobs and opportunities. Let’s just hope we are able to find enough employees once the threshold begins to drop. Our food security depends on it.”
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