Increased automation is possible if farmworker overtime rules are changed for 2021, a group of more than 60 farm organizations has said in a letter to Gov. Andrew Cuomo.

The letter was sent by representatives of organizations that include the Dairy Farmers of America, Farm Bureau of New York, Upstate Niagara Cooperative Inc., New York Corn and Soybean Growers Association, Farm Credit East, the New York State Flower Association, New York State Vegetables Growers Association and a host of others have sent a letter to Gov. Andrew Cuomo asking the overtime threshold to remain in place at 60 hours.

Two hearings scheduled in December to discuss changes to farmworker overtime. Hearings were held online via Zoom at 4 p.m. Tuesday, Dec. 1, and 3 p.m. Wednesday, Dec. 2. Five public hearings have been held to hear testimony to consider the existing overtime work threshold for farm laborers and the extent to which the overtime work threshold may be lowered in New York state.

“As farmers testified this year before the wage board, varieties of vegetables that require hand labor will continue to disappear, increasingly relying on imports from places that do not have strong worker protections like in New York state,” the letter states. “Orchards will be pulled in lieu of field crops that only require machines for planting and harvest. Dairy farms will turn to robotic milking machines at a faster rate than today. Our regional and worldwide competitors–who have no such requirements–will only gain advantage from these changes, not New York farmers. We recognize that New York is leader in the nation in many areas, and even though we currently may be leading other states when it comes to farm labor protections, we are on the precipice of policy that will lead farmers out of business.”

Passed in 2019, the Farm Workers Fair Labor Practices Act granted year-round and seasonal farm employees many of the same labor rights and benefits as workers in other industries. Those rights included 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.

“The Wage Board record is clear: a 60-hour overtime threshold is manageable, but anything less than 60 hours will require the agriculture industry to make significant alterations, continuing only where labor is not required,” the letter states. “Farmers growing labor intensive crops like fruits, vegetables and other commodities that cannot be automated, will not remain profitable while they compete in the marketplace. Even commodities that can adopt some labor-saving practices will see a financial impact. We respectfully request that New York keep the farmworker overtime threshold at 60 hours. The farm community came to the table in the 2019 legislative session to establish the delicate balance required to address social justice issues, while maintaining economic stability in the agriculture industry. We could have chosen to continue our traditional posture of full opposition to changing existing labor laws governing farmworkers. Instead, we opted to be an active part of the solution.”

During previous wage board hearings this year, farmers and their employees overwhelming described the economic challenges they are facing, especially in a pandemic, and how a lower threshold will likely lead to fewer hours available and less income for employees. During those hearings, Assemblyman Andy Goodell, R-Jamestown, and Sen. George Borrello, R-Sunset Bay, also requested the 60-hour overtime rule stay the same.

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, while noting agriculture can be very weather dependent, making it impractical to limit overtime during the harvest or at other critical times.

“When the grapes reach their peak ripeness, it is critical that the harvest proceed as quickly as possible,” Goodell said. “A major rainfall, for example, can have a material negative impact on the value of the crop.”

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.

Those virtual hearings were announced with seemingly little time to make reservations to speak at the hearings and in a way that made it difficult for the public to participate.

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.

“Farms in New York state have not yet completed even a single growing season under the mandates of this burdensome new law, which took effect on January 1, 2020. They are still grappling with the changes and trying different strategies to comply with the 60-hour threshold while trying to keep their operations afloat. It is incomprehensible that they are already being confronted with the possibility that the threshold will be lowered even further,” Borrello said in a virtual news conference Monday. “Additionally, the COVID-19 crisis created fresh financial hardships for farmers and unprecedented disruptions to the food supply chain. Not only would it be terribly unfair to add to their difficulties right now, this season has been an anomaly, so it would be a mistake to base any long-term decisions on this year’s experiences. For these and so many reasons, we need to hit the pause button on this premature effort to evaluate a brand new law.”