New York agriculture and its farmworker network finally received news on Sept. 6 that the NY Farm Labor Wage Board has voted in favor of the recommendations to reduce the overtime threshold for farmworkers from 60 hours a week to 40. The fate of NY farm businesses was awkwardly decided by just three people in less than a 30-minute Zoom session.
Board Chair Brenda McDuffie, former president and CEO of the Buffalo Urban League, and Denis Hughes, former state AFL-CIO president, voted for the change, with NY Farm Bureau President David Fisher vehemently casting the lone no vote to recommend the change to NYS Labor Commissioner Roberta Reardon. “I knew cards were stacked against the position of my organization,” Fisher said. “The facts cannot be ignored even if the report doesn’t give them their due diligence.”
The board’s final 21-page report (dol.ny.gov/system/files/documents/2022/09/2022-report-and-recommendations-of-farm-laborers-wage-board-final_1.pdf) indicated it reviewed various testimony and cites several reasons for its recommendation, including the physical and emotional toll on farmworkers, the economic impacts to the ag economy and equity and racial justice.
The report recommends reaching a 40-hour minimum work week for farm laborers by 2032, a decade-long process. It is proposed the threshold will be lowered to 56 hours by Jan. 1, 2024, 52 hours by Jan. 1, 2026, 48 hours by Jan. 1, 2028 and 44 hours on Jan. 1, 2030, finally reaching 40 hours on Jan. 1, 2032.
“We believe this decision protects the rights of farm laborers while taking into account the needs of farmers,” said McDuffie. The “majority” (two) of the three-member wage board found the farm industry’s economic concerns are important, but given the hefty tax credits approved by the Legislature this past budget cycle, intended to cover overtime costs in full, they decided to support farmworkers.
“They [tax credits] provide a means for New York’s farms to go through the difficult transition to a lower overtime standard with less economic impact and will help to support a continued strong farm economy,” the report read. As previously foreshadowed in Country Folks, “Governor Hochul, supported by both NYS Senate and Assembly Agriculture Committee chairs, announced in her Jan. 5, 2022 State of the State $216 billion budget plan a refundable tax credit for overtime hours paid by agriculture businesses to their workers by doubling the Farm Workforce Retention Tax Credit, creating a new overtime tax credit and increasing the investment tax credit for NY farms; ultimately paving the way for lowering the 60-hour work week threshold to 40.”
As expected, the monumental decision has created jubilation, strife and frustration, depending on one’s perspective within NY agriculture. NYFB issued this statement: “New York Farm Bureau President David Fisher voted to oppose the final report on the overtime threshold because it is not a full and accurate depiction of the data and testimony gathered during the two-year long process. This includes a lack of significant economic data as well as detailed testimony from farmers, farmworkers and agricultural experts. New York State agriculture is a national leader in wage rates, human resource development and safety training. Many of the farm labor protections in place exceed those of any private industry in the state. Yet much of this was also not included in the report. In the end, the report written by the Department of Labor justifies the wage board recommendations, based on cherry-picked data and inflammatory opinions. We are asking Commissioner Reardon to set the record straight and reject the report.”
Many lawmakers whose districts include the ag industry provided swift rebuttals and a call to action saying the decision will put additional strain on farmers who are already suffering from high fuel costs and inflation.
“Today, the unelected Farm Labor Wage Board delivered a tone-deaf and financially devastating final recommendation for the family farms in New York state by recommending to lower the overtime threshold from 60 hours to 40 hours,” said Assemblyman Phil Palmesano (R,C,I-Corning). “Today’s recommendation could decimate the family farm as we know it. This will now go to Gov. Hochul for a final decision. The fate of the family farm and the entire agriculture industry in the state now falls at her doorstep.”
“It was unfair and unethical of the Legislature’s majorities and New York’s former governor to require this decision of three unelected individuals, two-thirds of whom lack any agriculture background,” said State Sen. George Borrello (57th District).
“The real experts on this issue were the hundreds of those on the front lines of the industry – farmers, farmworkers and agribusiness representatives – who provided nearly unanimous testimony at the board’s public hearings that a lower threshold would force them to change or scale back their operations or abandon agriculture entirely. Farmworkers, the alleged ‘beneficiaries’ of this decision, testified that a lower threshold would force them to seek work in other states. The fact that the Wage Board ignored the voices of those who have devoted their lives to farming indicates that the process was always intended to be optics and nothing more,” emphasized Borrello.
Assembly Minority Leader Will Barclay (R,C,I-Pulaski) called the panel’s recommendation “completely tone-deaf to the brutal economic conditions facing family farmers.”
Justin Wilcox, executive director of Upstate United, a taxpayer advocacy coalition focused on growing the upstate economy, described the report as a “death sentence for many family farms across the state.”
State Sen. Tom O’Mara (58th District) said, “The Wage Board has been moving in this direction from the start and now Gov. Hochul has the opportunity to finally reject it. She should listen to the thousands of farmers, farmworkers, farm advocates, agricultural representatives, community leaders and legislators, including me, in near-unanimous opposition. The message has been delivered by the industry’s top advocates, including the New York Farm Bureau, the Northeast Dairy Producers Association, Grow NY Farms and numerous others. Local, federal and state representatives have made it known that we fear the undermining of an industry and, equally important, a way of life that has defined the regions we represent. If left to stand, it will change the face of New York State agriculture as we have known it for generations. It will risk the future of high-quality, local food production.”
Assemblyman Chris Tague (R,C,I-Schoharie), the ranking member of the Ag Committee, blasted the Wage Board’s decision: “The decision will hurt our farms, our farmworkers and our rural economies.”
“Today’s decision by the Farm Laborers Wage Board to reduce the overtime threshold is not just out-of-touch; their callous action is knowingly going to put New York family farms out of business,” said NY GOP Chair Nick Langworthy.
Assemblywoman Donna A. Lupardo, chair of the Assembly Ag Committee, said the issue should be handled by the federal government, including standardizing labor laws for farmers nationally. “While I strongly believe that farmworkers deserve to be paid wages similar to other workers, a failure to address systemic changes will present insurmountable challenges for many of our farms,” she said.
Support for the ruling came from NY Civil Liberties Union Senior Attorney for Legislative Affairs Lisa Zucker: “Farmworkers have waited over 80 years for an end to the racist exclusion that has stolen countless hours of overtime pay. Gov. Hochul and Commissioner Reardon must prevent another generation of workers from suffering by unequivocally accepting the Wage Board’s recommendation.”
“This important and long-overdue action means farmworkers in New York State are now a step closer to being fairly compensated for the essential and often physically grueling work they do,” state AFL-CIO President Mario Cilento said in a statement. State Sen. Jessica Ramos (13th District), chair of the Labor Committee, said in a statement that she is “elated” by the decision, adding that now it’s up to Reardon and the administration to “finish the job and be a champion for working people.”
Over the next 45 days, as Reardon reviews the report and weighs a decision, it’s expected the issue will continue to be a widely debated one. The decision, due no later than Oct. 21, would come just two weeks before the general election. It’s still unclear when Kathy Hochul will wield her pen to bring the change to fruition.
by Troy Bishopp