by Courtney Llewellyn

In 2018, the New York State Department of Labor took a step toward what was considered better pay for hard work by establishing the 60-hour work week before overtime for the ag industry. With only a few years of seeing how this affected agriculture, on Jan. 28, the Farm Laborers Wage Board voted two to one to recommend lowering the overtime threshold to 40 hours a week over the next 10 years – despite 70% of the testimony made by farmers and farmworkers who asked for overtime to stay at the 60-hour threshold.

The Grow NY Farms Coalition (which includes NY Farm Bureau, the NYS Vegetable Growers Association, the Northeast Dairy Producers Association, the NY Apple Association, the Northeast Agribusiness and Feed Alliance, the NY Association of Agricultural Educators and Unshackle Upstate) shared the following regarding the vote: “It is disingenuous and irresponsible that the data, research and comments made from those who know agriculture best were cast aside by the majority of the Wage Board. Changing the overtime threshold to 40 hours a week for farmworkers in New York means that these workers will be limited to 40 hours, due to simple farm economics. This is not a win for farmworkers that self-proclaimed worker advocates will claim.”

Brian Reeves, president of the NYS Vegetable Growers Association, agreed. He noted that each farm in the Empire State is different, but everyone is going to have to figure out how to get their work done in the allotted hours. “What do we do?” he asked. “Hire more people? Change our crop mix? Grow things with better returns?”

The Wage Board vote isn’t the final decision, however. The DOL Commissioner, Roberta Reardon, must now submit a written report that will be subject to 15 days of public comment before a final decision is made by Gov. Kathy Hochul.

Farming in New York State is rarely a 9-to-5 job. Photos by Troy Bishopp

“The agricultural organizations in the state will get the word out to memberships to make comments, to tell their story,” Reeves said. “Our story has been very clear and very consistent since before the legislation passed in 2018. It has not changed at all – but agriculture is different. The same sort of philosophy in other industries doesn’t apply to ag. This new rule would put a terrific burden on farms in the state, and that same message needs to be transmitted again.”

NYFB President David Fisher, who is on the Wage Board, noted that the vote will be extremely difficult for farmers and farm workers to absorb. “The decision was made with little deliberation or time to reflect for a thoughtful resolution,” he said, adding that anything lower than the current 60-hour ceiling will hurt farm workers, as they’ll end up earning less money – and New York ag “can’t afford to lose our skilled workforce.” Grow NY concurred, stating that “we all value essential farm work and want the very best for farm employees, that includes the ability to earn a livelihood in the profession they have chosen.”

Reeves, who operates a fresh market fruit and vegetable farm, said the work is very labor intensive. He participates in the H-2A guestworker program and said his group of hardworking laborers want to work as much as they can while they’re in New York to bring good money back home to their families. Changing that – making farm owners cut back hours because they can’t afford overtime – wouldn’t make fiscal sense for those working on visas. “They’re trying to fit a square peg in a round hole,” Reeves said.

That analogy ties into something else Fisher said. Increasingly, and especially since the pandemic started, New Yorkers want to consume fresh, locally grown food. If the 40-hour week is instituted, labor will be too expensive and there won’t be as much access to as many New York State-grown products.

There won’t be as many products to offer either if the guestworkers opt to go somewhere they know they’re guaranteed more hours. “The choice is very simple for these folks,” said Eric Ooms, NYFB vice president. “They can get 40 hours in New York or 65 in Massachusetts or Connecticut. They’ll do what’s best for them.”

One of the arguments for the 40-hour ceiling is that California has this rule on its books – but it was only implemented on Jan. 1 of this year, and California’s agricultural economy is vastly different than New York’s. “California is on a much bigger agricultural scale,” said NYFB Public Policy Director Jeff Williams. “We can’t compare New York apples to California’s oranges.”

“It’s hard to make a change without giving it a few years,” Fisher commented. “I asked the Wage Board to stay still for five years, to see the impacts of the 60 hours, and as you can see, that suggestion was ignored.” He added that NYFB already knows the damage 60 hours has done, especially for fruit and vegetables growers, who often see 50% of their costs in labor. The 40 hours would “really put us at competitive disadvantage.”

Reeves had his own suggestion: Up to 40 hours of work, the boss has the say of what the employees are going to work. Over 40, put the power in the hands of the worker. “Let them choose what they want to work,” he said. “Some will stay at 40; some will try to make as much as they can … Can we craft the economy to fit people’s lives instead of one-size-fits-all?”

Another suggestion is creating a tax credit to help farmers offset the cost of overtime pay, which Fisher said looks good on paper, but the state will still need a reliable way to come up with that money and, even in the best of situations, farmers wouldn’t see those funds coming back to them until a year or more after they’ve been paid out.

Grow NY stated that if the Hochul Administration cares about the future of upstate New York, Long Island and urban access to locally produced food, they must put a stop to the constant regulatory assault on agriculture.

State Sen. Michelle Hinchey, chair of the Senate Ag Committee, added, “Even before the pandemic, farmers were struggling to survive under skyrocketing costs, plummeting food prices, loss of markets and severe weather events, which have forced thousands of small and mid-sized farms out of business at alarming rates. If we continue to increase farmer costs, we must also commit to bolstering the agriculture sector as a whole, otherwise, the industry will soon cease to exist in New York State which will have a crushing effect on our state’s economy and will leave New Yorkers without a reliable food supply. To make matters worse, our country’s agricultural lands are falling victim to the increasing effects of the climate crisis, with all signs pointing to the importance of New York agriculture for the future of our nation’s food security. All workers must be treated fairly, paid a living wage and be able to live with dignity, and we must also ensure the success of the industry at large. Our farmers need urgent debt and tax relief, they need revenue-generating solutions, and they need to be able to rely on both their state and federal leaders to deliver this support. In order to move forward successfully, all stakeholders involved in the Wage Board’s decision must be ready to work together to advocate for the success of this vital industry and those it employs.”

“So much is at stake,” Fisher stated. “New York Farm Bureau is asking Governor Hochul to step in. Rethink the Wage Board decision and do what’s best for New York agriculture and the state’s food system. There needs to be more discussion with the governor and the legislature. We will continue to fight forward together.”

Farmers can send a message to Gov. Hochul’s office by visiting governor.ny.gov/content/governor-contact-form.