by Troy Bishopp

Many New Yorkers are wondering how three people received so much power over 19 million daily plates of food. The farm community is head-scratching over percentages and how majority rule isn’t as transparent as it seems. No matter the consternation over the Farm Laborers Wage Board decision to lower the overtime threshold for farm laborers from 60 hours to 40 hours, it signals an alarm bell for all of agriculture. Or is there a plot twist?

On Jan. 28, the New York Farm Laborers Wage Board held their fourth virtual public hearing because of the overwhelming volume of testimony from farm employers, employees, industry experts and labor advocates considering the current the 60-hour overtime threshold for farm workers. Following the Friday afternoon hearing, the board held a brief business meeting which included the passage of three motions, according to the NYS Department of Labor: “Resolution One – The overtime threshold for farm laborers, which is currently set at 60 hours, be reduced to 40 hours. Resolution Two – The reduction of the overtime threshold from 60 to 40 hours be phased in over 10 years with reductions of four hours on a biannual basis. Resolution Three – The phase-in schedule will begin on Jan. 1, 2024 with the threshold set at 56 hours; on Jan. 1, 2026, with the threshold set at 52 hours; on Jan. 1, 2028, with the threshold set at 48 hours; on Jan. 1, 2030, with the threshold set at 44 hours; on Jan. 1, 2032, with the threshold set at 40 hours.”

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Each motion was proposed by Board Chair Brenda McDuffie, president of the Buffalo Urban League, and seconded by Denis Hughes, representative of the union AFL-CIO. The third member, David Fisher, president of NY Farm Bureau, opposed all three motions, but the motions were each passed two to one. But here are the transparency twists: According to the Grow NY Farms Coalition, 70% of comments spoke against the proposal. And the motions made are “nonbinding” recommendations to State Labor Commissioner Roberta Reardon, who could reject, modify or accept these motions. Pundits say, “The State of New York never works that fast.”

After such an important decision such as farm labor issues, there was nary a mention on the NYS Assembly, Senate Agriculture Committee members’ or NYS Ag & Markets websites. Perhaps they were caught off guard? State Sen. George Borrello (R-57), ranking member of the Senate Ag Committee, said, “It will be another nail in the coffin of New York State’s agriculture industry.”

State Senate Ag Committee member Sen. Jessica Ramos (D-13) issued the following statement: “Throughout the pandemic, the agricultural industry and labor of this workforce kept New Yorkers fed. We have a moral obligation to these workers … Every win for this workforce is a continuation of an effort to right a legacy of racist wrongs … Today’s decision brings farmworkers up to the level that was made for the rest of us more than a hundred years ago … The people who do this work are not disposable, and their labor is not their only purpose in life. They are human beings who deserve time and pay that allows for a full life. This path to 40 is a recognition of their humanity.”

Assemblymember Donna Lupardo, Ag Committee, chair, stated, “I did not support turning this important decision over to a three-person Wage Board; especially one that did not include an appointee from the Department of Ag & Markets. If these recommendations hold, New York must fully commit to helping NY farmers make this work. We are surrounded by states that have not adopted this policy, a federal government still working with wage rules from 1938 and a failed immigration policy. I strongly believe in the dignity of farm work and that workers should be paid wages similar to other industries, while recognizing the unique challenges farms face. In order to do so, farmers will need direct aid and other measures to offset these costs.”

Reactions to the announcement have been swift, measured, angered and heartfelt, whether from an organization or an individual. “We did something very historical today,” said Wage Board Chair McDuffie.

“The Farm Laborers Wage Board made the right decision recommending a phased-in overtime plan that will create equity and equality for farmworkers,” said Mario Cilento, president of the NYS AFL-CIO.

“While the industry overall may survive, many individual farms will not,” said Chris Laughton of Farm Credit East.

“Labor is our number one expense, year over year. Agriculture cannot limit itself to a 40-hour work week,” said Helen Giroux, North Country farmer.

“This decision will be a game changer for agriculture. It will also be a game changer for rural communities throughout the state where farmers are the main economic driver,” said Jessica Chittenden Ziehm, Washington County dairy farmer.

“All the people I manage want 60 hours per week. If overtime is reduced to 40 hours, the farm will be forced to cut hours and my people will leave for another state,” said Jefferson County Farm farmworker supervisor Domain Velasquez.

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Photos by Troy Bishopp

“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,” stated the Grow NY Farms Coalition. “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. This is also a loss for New Yorkers who enjoy and depend on access to local food, something that was highlighted during the pandemic.”

“When 70% of the people spoke up and said they didn’t want the overtime hours to change only to have their opinion negated, I guess we all know the decision was fixed to begin with. They never wanted anyone’s opinion except their own. There is no common sense being used to legislate New York anymore. With so much at stake for who will feed, clothe and provide fuel to keep New York moving, I think this initial vote is extremely short sighted,” said Judi Whittaker of Whittaker Farms LLC.

State Sen. Tom O’Mara (R-58) added, “If left to stand, it will change the face of New York State agriculture as we have known it for generations.”

“Mandating farms to pay overtime over 40 hours a week is a death sentence to NYS agriculture. Please consider the notion that you got this one very wrong,” said dairy farmer Jessica Meiller.

“It’s a sad day for agriculture and once again too many people are removed from reality, making decisions on things they have no idea about. This decision is a bad one and the chips will fall where they may. I just wish people making these decisions actually did due diligence and visited these businesses and their employees. In 10 years, upstate New York will not be recognizable, because of decisions made by many years of poor political leadership,” emphasized dairy farmer Ray J. Dykeman.

“I’ve never seen this much passion on this issue,” said NYFB President Fisher. “It’s a rallying cry for all of New York agriculture. I voted against lowering the threshold, simply asking for more time to study the economic impacts for New York agriculture.”

“It is not a final decision, only a recommendation,” cautioned NYFB’s Director of Public Policy Jeff Williams. “We want to talk with the governor directly and seek intervention from NYS Ag & Markets on this important decision.”

According to Cornell Agricultural Workforce Development, “Staff from the NYS Department of Labor will summarize the vast amount of testimony and information from the hearings, and the motions of the wage board, into a draft final report. Wage board members will have an opportunity to review and comment on the report as it is prepared, then they will vote to approve or disapprove the final report. Next, the report will be published and there will be a 15-day public comment period. The report will then be submitted to the NYS Commissioner of Labor. The commissioner can follow the wage board recommendations or modify them, but ultimately the commissioner will issue a wage order which will have regulatory authority with the ultimate decision being left to Governor Kathy Hochul.”

Ironically, Hochul announced in her Jan. 5 State of the State $216 billion budget plan a refundable tax credit for overtime hours paid by ag 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. Was that a bargaining chip or a mighty big nail?