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NY Farmworker Overtime Laws Are Changing, But Only at a Snail’s Pace

New York is dragging its feet compared to other states that have moved forward with farmworker overtime measures.

Simon Davis-Cohen Apr 11

For more, see “Biting The Hands That Feed: New York’s Immigrant Farmworkers Face Appalling Treatment” by Leanne Tory-Murphy

Martina Marisol wakes up before dawn most days to get to work at 6 a.m., on a farm upstate. She often doesn’t get home until the late evening. Some weeks, she works up to 60 hours.

That schedule is typical for agricultural workers across New York State. But overtime only starts for farmworkers at 60 hours, compared to the standard 40 hour work week.

Advocates for farmworkers have long pushed to remedy the issue by requiring employers to pay workers overtime after 40 hours a week. Earlier this year, a wage board formed by 2019 fair labor legislation recommended doing just that — though under its proposal, the overtime threshold wouldn’t be fully phased in for another decade. The plan is also pegged to a proposed tax credit for farm owners who pay overtime, which was included in the new state budget. This amounts to millions of taxpayer dollars to offset the cost of paying overtime. 

The official summary of the 2019 Farm Laborers Fair Labor Practices Act (FLFLPA) states that the bill “provides for an 8-hour work day for farm laborers,” or 40 hours per week. However, following heated lobbying from the farm industry, no implementing language for 40 hours was included. Instead, the bill provided overtime pay after 60 hours worked, and formed the Wage Board to pursue further expansions.

New York’s plan includes millions in subsidies for employers and a decade-long phase-in schedule

The FLFLPA was passed to begin to address what’s described as the racist exclusion of farmworkers from New Deal Era federal labor protections. Farmworkers and domestic workers — then majority Black — were left out of the 1938 Fair Labor Standards Act (FLSA) and National Labor Relations Act of 1935. It was not until 1966 that farmworkers gained some protections under FLSA — like minimum wage and record-keeping guarantees. (Farmworkers also gained some rights with the passage of the 1983 Migrant and Seasonal Agricultural Worker Protection Act.) However, nationally, their wages remain only 60% of other comparable workers, and they are still left out of federal collective bargaining standards. A movement is now pushing states, like New York, to begin to address this historic injustice.

The Wage Board’s latest recommendation was delayed from December 31, 2020 to January 2022, in part due to COVID-19.

Farmworker advocates are pleased with the 40-hour work week recommendation, but want a faster phase in timeline. “To me, the biggest issue is that we actually get to a 40-hour work week. The 10-year phase-in is a very long phase-in to get to a 40-hour work week,” David Kallick, Director of the New York-based Immigration Research Initiative, told The Indypendent.

Compared to other states that have moved forward with farmworker overtime measures, New York is dragging its feet.

California passed legislation in 2016 to expand the farmworker overtime threshold from 60 hours to 40 hours. The state planned for a three-year phase in, from 2019 to 2022 for large employers, and another three year process for smaller employers, to be completed between 2022 and 2025.

In Washington, dairy workers won a 40-hour work week thanks to a 2019 state supreme court decision. Their benefits kicked in just one year later. Then, in 2021, the legislature expanded those benefits to all agricultural workers, via a quick two year phase-in, from 2022 to 2024.

New York’s plan would mean overtime for farmworkers would get to 40 hours by 2032, 13 years after the legislation was passed.

Not only did California and Washington move toward 40 hours much quicker than New York, they both did so without any subsidy for employers. (Oregon passed a 40 hour bill this year that includes a tax credit, which would decrease as overtime is expanded over five years.)

These subsidies are praised by industry groups. Legislation to add an employer subsidy to California’s program was proposed in 2020, but it did not pass. That bill was supported by the California Farm Bureau, which said the credit would “encourage farm employers to increase the income of farm employees by relieving them of the financial burden of paying overtime wage premiums.”

Lessons from California

The example of California suggests such a conservative approach is not necessary.  After overtime was expanded, California actually saw a small increase in the number of agricultural establishments, according to research by Daniel Costa, of the Economic Policy Institute.

In sum, “There are no smoking guns out there showing that [overtime] will (or is) destroying the industry in any way,” Costa told me.

Farmworkers were excluded from New Deal Era federal labor protections. A number of states, including New York, are beginning to address that.

As New York’s $5.75 billion agricultural industry gears up for the 2022 season, the overtime threshold remains at 60 hours. Under the current proposal the next expansion will be to 56 hours, in 2024. Meanwhile, the farm-worker labor force remains precarious and subject to abuse, as many workers remain undocumented.

Regardless of what laws are on the books, New York farmworkers face wage theft and retaliation. “Workers often accept arrangements that don’t reflect the overtime victories because they don’t want to make trouble,” Jessica Maxwell, Executive Director of Workers Center of Central New York told The Indypendent. Sometimes, workers will be given a “salary” up to the overtime threshold, then be paid in cash under the table for additional hours, skirting overtime benefits, she said. “We see a lot of cases of wage theft related to overtime or minimum wage. … As the overtime threshold decreases, it’s possible we could see an increase in the dollar amount of this type of wage theft.”

This is one reason advocates fought hard to include collective bargaining rights in the FLFLPA. Despite COVID-19 delaying campaigns to educate New York farmworkers of their new rights under the FLFLPA, in late 2021, workers celebrated the creation of New York’s first farm-worker union, at Pindar Vineyards on Long Island.

“It’s important to have laws that regulate basic labor standards,” saysYomaira Franqui, Lead Organizer for Local 338 RWDSU/UFCW, who supported the successful organizing campaign. “It’s also crucial to have labor unions who represent workers so they have a voice in the conditions of their own work. This all goes hand in hand with the right to organize.”

As gains are made in farm-worker organizing, new barriers are created. Along with the challenges of organizing a workforce composed significantly of undocumented people, a 2021 ruling by the U.S. Supreme Court has made farm-worker union organizing even harder across the nation. That decision explicitly prohibits unions from entering farms during non-work hours to speak with workers, something the National Labor Relations Act permits for other unions. It is yet another example of how farmworkers are treated differently than others.
“We have been excluded. Please stop discriminating. … It’s been [over] two years since the [FLFLPA] law came into effect,” New York farmworker Crispen Hernandez testified at a wage board hearing. “We want the threshold to be after 40 hours.”

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