by Courtney Llewellyn
There is a glimmer of hope for New York farmers still looking for clarification and expansion of a key part of the Farm Laborers Fair Practices Act. Thanks to a 30-day extension of a legal stay, the definitions for farm laborers will continue to be refined until at least Feb. 28.
Brian Reeves of Reeves Farms in Baldwinsville, NY, is also president of the New York State Vegetable Growers Association (NYSVGA). He and his brother are partners, the fourth generation to work the farm. His niece and nephew are the fifth generation, transitioning in now. Most farms are family affairs in this way – and that’s why the wording of the new ag labor law is so important.
The situation at Reeves Farms
At their peak, Reeves Farms had about 70 employees, with a maximum of 52 H-2A workers from Mexico, to tend to their 300 acres of crops. The Farm Laborers Fair Practices Act introduced a regular 60-hour work week before overtime pay would kick in, with one mandatory 24-hour period of rest every seven days. “Where that really adds up is that New York minimum wage is $11.80 an hour, but the H-2A minimum wage is $14.29 an hour,” Reeves said. “That comes to $21.44 an hour for overtime, and you can’t run a fresh market farm paying almost $22 an hour.”
Reeves stated that New York farmers are at the mercy of the climate and the weather. They can’t put on a second shift like a factory to bring in strawberries and sweet corn. “On our farm, we need to pick seven days a week. Direct store delivery every day a big part of our business,” he explained.
To keep in compliance with the new rules from the act, he said they’re considering taking their rental properties and turning them into labor housing. They would increase to a workforce of 63 H-2A workers, “counting them off by sevens like in gym class,” so that every day they can maintain 52 workers and give the others their day of rest.
However, this means increased management for him and his brother, a loss of rental income, an additional $1,000 per worker for recruitment and visas, plus any overtime that does accrue. They would be looking at a minimum out-of-pocket cost of $25,000. These changes result in major increases to Reeves Farms this year since on a farm 40% to 50% of expenses are in labor. “If I could pass those costs along to consumers to get more for my workers, I would,” Reeves said. “They work hard. They deserve it.”
The contention behind definitions
The farm community has engaged with the state for over a year now, talking about compromise for everything covered in this labor act, according to Reeves. “I’m glad we were able to change the work week from 40 hours to 60 hours before overtime, and we never fought about granting the day of rest,” he said. “We continued to engage with our legislators with a good faith effort to go along with the law.” However, he said, in mid-December the Labor Department made decisions regarding the language about owners (which would include immediate family members only) and those considered supervisors/managers – those who are not general “farm laborers.” This created problems.
“We need to expand the family definition and the one for key hired personnel who receive salaries,” Reeves explained. “If you’re going to be proud of protecting farm workers, you need to protect all of them.”
To make that definition expansion happen, the NYSVGA and the Northeast Dairy Producers Association (NEDPA) joined forces to file a federal lawsuit on Dec. 30, fighting the current language of those two definitions “because we believed they would cause irreparable harm if farms were in violation of the law come January 1,” Reeves said. “A lot of farms are run by extended family, not just Dad-Mom-daughter-son. And there are other positions, like an on-call mechanic, that don’t fit in the current definition of a laborer.” Having to pay all those employees overtime as well could cost a lot of farms a lot of money.
The U.S. District Court agreed on working to get the definition right, and a hearing was scheduled for Jan. 24 to revisit the issue. However, an assistant attorney general requested another 30-day extension as progress continues. “We’re hoping to reach an agreement by our hearing on Feb. 28,” Reeves said.
“The good news is the governor’s proposed budget includes money to help fix the family definition issues,” he continued. “It’s a good start – it allows up to the third degree of consanguinity.” This term regarding lineage, dating back to the 15th century, would include aunts, uncles, cousins, nieces and nephews as part of “family.” “If the budget passes with that funding in place, it corrects the family definition issue.”
However, the other issue is still very much in play. “We’ve heard there’s a concern that all workers would become ‘supervisors’ and therefore salaried and not eligible for overtime,” Reeves said. “But there is already black and white New York law that would prevent that, based on annual wages and a duties test.”
NYSVGA and NEDPA are hoping to keep the restraining order in place until the definitions are fully hashed out, and aiming for the day the state’s budget is supposed to be approved (April 1).
“We feel what we’re asking for is a very reasonable proposal,” Reeves said. “We will continue to plead our case. We’re talking about a very low percentage of workers affected by these definitions.”