On Jan. 28, 2022, the three-person New York Farm Laborers Wage Board stunned New York agriculture with a Friday afternoon recommendation to Gov. Kathy Hochul to lower the overtime threshold for farm laborers from 60 hours to 40 hours. Since then, the decision has been mired with closed-door, intense negotiations from agriculturists, politicians and farmworker advocates trying to sway the governor in their favor.

The rhetoric is heating up as indications point to a Sept. 6 announcement, which is a favorite, traditional New York State Fair activity by the governor (past and present) to tell farmers and voters about their ag funding decisions before election time. The irony of this year’s proclamation has the potential to cause labor pains, no matter which side of the issue you’re on.

With the run-up to the monumental decision, opposition bantering is on full display. At a recent press conference on Stanton’s Feura Farm in Albany County, Republican gubernatorial candidate Lee Zeldin vowed if elected he “would work to overturn any change in the farm overtime rules.” “My commitment is to kill this change to the threshold. It should be 60 hours, not 40 hours,” he said. He was joined by U.S. Rep. Elise Stefanik, NYS Assemblyman Chris Tague and NYS Sen. Peter Oberacker, who have also called on labor officials to not follow through with the move.

Senator George Borrello, ranking member of the Senate Ag Committee, has even proposed legislation that would eliminate the three-member Farm Laborers Wage Board, established as part of the Farm Laborers Fair Labor Practices Act (FLFPA) passed in 2019.

“The Wage Board has just one member with an agricultural background, making it ill-equipped to render sound, informed decisions concerning New York State’s critically-important agriculture industry,” said Borrello. “The fact that the board ignored the vast majority of testimony, as well as data from a Cornell study that found a lower threshold would hurt both farmers and farmworkers, indicates the process was more optics than anything else. Regardless, a decision of this magnitude should not rest with three unelected, unaccountable individuals, which is why this legislation is necessary.”

Labor pains

Country Folks editor Courtney Llewellyn talks with NYS Ag Commissioner Richard Ball.

Lieutenant Gov. Antonio Delgado opposed the 40-hour overtime threshold when he was a Congressman, and wrote to Hochul in March 2022, “Rather than move forward with the wage board’s decision, I urge you to work with farmers to find a better solution.” New York Ag Commissioner and Schoharie County vegetable farmer Richard Ball has remained generally silent on the issue, although the pressure is mounting for him to take a stand.

Labor unions and other organizations have fought for the 40-hour threshold to give migrant farmworkers a fairer wage. Farmworkers continue to lack labor protections to other industries. Lisa Zucker, senior attorney for legislative affairs with the New York Civil Liberties Union, said the higher overtime policy is rooted in racism. “Farmworkers are still waiting for the dignity and fairness that they deserve,” she stated.

The increased public positioning by agriculture advocates, industry representatives and legislators has come on the heels of a July 28, 2022 Spectrum News 1 interview with Jeff Williams, New York Farm Bureau’s director of public policy. Williams said, “They expect Governor Kathy Hochul and her administration to accept the Farm Wage Board’s recommendation to reduce the overtime threshold for farmworkers after conversations they had with her this past spring … We’ve had continuing conversations with the Department of Agriculture and Markets and her staff, but it is clear that the governor is intent on, you know… her plan is to go to 40 hours. And that’s been the clear message from the governor’s office.”

To help soften the intended labor pains for farmers, legislators already doubled the Farm Workforce Retention credit to $1,200 in the budget through 2025. They also passed the state’s new Farm Employer Overtime Credit, which will be equal to 118% of the eligible overtime hours worked, providing a dollar-for-dollar tax credit for every penny spent on overtime pay if the state threshold is lowered. Eligible farmers can receive an advancement on the tax credit for the first six months of the year to help with cash flow.

On Sept. 6 at 4:30 p.m., NYS Labor Commissioner Roberta Reardon will reconvene the Farm Laborers Wage Board for a public meeting. During this meeting, the board will vote to advance their final report and recommendations on the overtime threshold for farm laborers. If the board advances the report, Reardon will have 45 days to review the report and recommendations and announce her decision.

At the recent Empire Farm Days, Ag Commissioner Ball noted it’s very likely that the board will vote to accept the report.

For New York farms, it will be just another day of labor and another chore-time meeting that limits participation by the very people it is supposed to help. As Yogi Berra put it, “It’s déjà vu all over again.”

by Troy Bishopp