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Farm labor overtime is unchanged despite lobbying on both sides

After much lobbying from both sides, a state Labor Department wage board has chosen to make no changes to overtime rules for farm workers in the coming year.

The decision was made late Thursday.

The Farm Workers Fair Labor Practices Act, passed in 2019, granted year-round and seasonal farm employees many of the same labor rights and benefits as workers in other industries including collective bargaining, housing protections, enhanced worker’s compensation protection and overtime pay of one and a half times an employee’s regular wages after 60 hours of work per week and/or if they choose to work on a designated day of rest.

The overtime hours were set in the legislation with the provision they be revisited by a three-member panel within a year. The panel can only lower the threshold or keep it the same — they cannot by law increase the number of hours required for overtime.

State Sen. George Borrello, R-Sunset Bay, and Assemblyman Andrew Goodell, R-Jamestown, both testified before the wage board against any change to overtime rules.

Goodell testified that agriculture is one of the most important business sectors in Chautauqua County, accounting for more than $175 million in economic activity. He said there was a 19% decrease in the number of farms in Chautauqua County from 2012 to 2017, according to the most recent USDA Census of Agriculture. Imposing higher overtime standards would likely result in a further decrease in the number of farms and the number people employed at farms, Goodell said at the time, while noting agriculture can be very weather dependent, making it impractical to limit overtime during the harvest or at other critical times.

“My thanks go out to the members of the Farm Worker Labor Wage Board for exercising sound and thoughtful judgment by deciding to delay any changes to the overtime threshold for farm workers for a year,” Borrello said in a news release Thursday. “It is evident that the many hours of testimony by farmers, farm workers, elected officials and agribusiness representatives urging that the level remain intact to allow for the collection of more data was truly heard and considered in this decision. Each and every individual who brought their voice to this process can be encouraged at this outcome. … As we prepare to welcome 2021 and embark upon rebuilding our economy, today’s decision is a great step forward. Again, my appreciation is extended to the Wage Board, the farming community and everyone who invested their time, dedication and perspective in this process.”

Borrello, meanwhile, has introduced legislation to keep the overtime rule the same until 2024. S.8944 was introduced in the state Legislature recently with Republican co-sponsors Pamela Helming, Daphne Jordan, Senate Minority Leader Robert Ortt, Michael Ranzenhofer, Sue Serino and James Seward. The news conference and Borrello’s legislation came as a response to the state Labor Department’s conclusion of three virtual farm workers wage hearings held via Zoom on Aug. 26, Aug. 27 and Aug. 31.

Borrello’s bill would require the state-appointed Wage Board to consult with agricultural employers and laborers, the state agriculture and markets commissioner and agriculture experts at Cornell University and require additional public hearings in 2021, 2022, 2023 and 2024. The legislation also would require the Wage Board to consider farm laborer wage and overtime rates in neighboring states, the impact of COVID-19 on farms, compensation received by farm laborers compared to similar industries, the supply and demand of farm laborers in New York and actions taken by farm employers in response to the Farm Workers Fair Laborers Act. Lastly, the state labor commissioner would be prohibited from acting on a Wage Board’s recommendations for 180 days.

“Over the next year, I will continue to advocate to maintain the 60-hour threshold,” Borrello said. “The overwhelming consensus of those who testified, as well as the farmers I’ve spoken with around the state, is that this level is the minimum the industry can bear and still remain strong and viable. … As we prepare to welcome 2021 and embark upon rebuilding our economy, today’s decision is a great step forward. Again, my appreciation is extended to the Wage Board, the farming community and everyone who invested their time, dedication and perspective in this process.”

The wage board’s decision was not welcomed by labor groups. Donna Lieberman, New York Civil Liberties Union executive director, said keeping overtime at 60 hours perpetuates discrimination against farmworkers while Jessica Maxwell, executive director of the Workers’ Center of Central New York, said politicians are being hypocritical when lauding the work of essential workers during COVID while using COVID as a reason not to lower the overtime threshold for farmworkers.

“Today in the middle of a global pandemic, when farmworkers are finally recognized as essential workers, the NYS Wage Board failed farmworkers and voted to keep the overtime threshold at 60 hours. For too long farm owners have benefited from the exploitation and exclusion of their workers from basic labor protections such as overtime pay. Although the Farm Laborers Fair Labor Practices Act provides some protections for farmworkers, the fight is not over. The overtime threshold should be 40 hours, and we will continue to fight until farmworkers in New York win the long overdue protections they deserve,” said Fabiola Ortiz Valdez, lead organizer at the Food Chain Workers Alliance.

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