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Farms facing 40-hour work week, like it or not

A 40-hour work week is likely coming for farmworkers in New York state whether they like it or not.

One day after the nation celebrated the Labor Day holiday, the Farm Laborer Wage Board voted in a 2-1 decision to recommend the state labor commissioner decrease the overtime threshold to 40 hours. That reduction would take place over the next 10 years and start Jan. 1, 2024. Roberta Reardon, state labor commissioner, now has 45 days to review the report and recommendations. That decision is expected to be influenced by Gov. Kathy Hochul.

“The workers on whom we depend for the food on our tables have waited over 80 years for dignity and to be afforded the same basic workplace protections as all other New Yorkers,” said Donna Lieberman, New York Civil Liberties Union executive director. “We urge Commissioner (Roberta) Reardon and Governor (Kathy) Hochul to accept the Wage Board’s recommendations and bring an end to the Jim Crow-era injustice and discrimination against farmworkers that the Farm Laborers Fair Labor Practices Act was intended to reverse. New York’s agriculture industry must no longer depend on the continued exploitation of farmworkers. The NYCLU will continue to stand with farmworkers in the fight for equal workplace protections, fair compensation, and basic rights across New York state.”

The decision wasn’t unexpected given the panel’s composition and its statutory limitation to only decrease the overtime threshold rather than being allowed to increase it.

Wage board members were Brenda McDuffie, its chairwoman and former president and CEO of the Buffalo Urban League; Denis Hughes, former president of the New York State AFL-CIO; and David Fisher, president of the New York Farm Bureau.

The wage board proposes four-hour decreases in the overtime threshold every other year. The state did budget did include a Farm Worker Overtime Tax Credit to reimburse farms for overtime expenses if the overtime threshold goes below 60 hours a week. Farmers would pay overtime wages up front and then be reimbursed for overtime hours after the fact. It’s also unlikely hours worked over 60 hours would be covered by the tax credit.

Fisher wrote a dissenting opinion after the wage board’s decision was released. While repeating farmers’ arguments that a 40-hour work week will decrease hours for farm workers and exacerbate an existing labor shortage, the first thing Fisher disagreed with was discrimination claims raised by farm worker advocates.

“What may be most disheartening is the references of historical racist policies to justify lowering the threshold,” Fisher said. “The report cited no evidence or testimony of racial discrimination on farms but highlights Ms. Dixon’s testimony that says “the history is connected to New York state’s present-day denial of labor protection to its largely Latinx Farmworker population.” In fact, farmworkers in New York have some of the strongest, if not the strongest set of protections in the country.”

Fisher also said the wage board’s report didn’t give enough weight to farm worker testimony received by mail — an important distinction for Fisher, who said hearings were held when many migrant workers were out of the state and unavailable to testify — while giving too much weight to labor advocacy groups. He said the state also isn’t taking into account changes farmers have made over the past several years to invest in safety training and better equipment, human resource development, higher pay and new housing construction.

“This report paints a picture of farmworker protections that is not grounded in truth,” Fisher said.

The wage board actually delayed a decision in 2020, in part because of the COVID-19 pandemic, and started a new process in 2021. That wage board process garnered widespread opposition from farmers and farm organizations while prompting legislation sponsored by Sen. George Borrello, R-Sunset Bay, and Assemblyman Andrew Goodell, R-Jamestown, to eliminate the Farm Laborers Wage Board altogether. That legislation can’t be considered until January, though it is unlikely it ever advances out of committee.

Farm Credit East, a lending organization focused on agricultural businesses, released a study in November showing labor costs for New York farmers would rise by 17% if the state adopts a 40-hour work week. Farm Credit cited a scarcity of available labor in casting doubt on the ability of farmers to adjust to a lowering of the 60-hour threshold by beefing up their workforce to avoid overtime costs.

It suggested the full cost of moving the threshold to 40 hours could push labor costs for farmers up by 42% when phased-in hikes to the state minimum wage are factored in. The minimum wage in upstate New York will go to $13.20 per hour at the end of the year. The average hourly pay for farmworkers now is $16.69 per hour, according to the report, which cited government wage data for the agricultural sector.

“Today, New York’s farming community moved another step closer to a tragic reckoning with the decision by the Farm Laborers Wage Board to officially recommend lowering the farm worker overtime threshold from 60 hours to 40 hours,” Borrello said. “It was unfair and unethical of the Legislature’s majorities and New York’s former governor to require this decision of three unelected individuals, two-thirds of whom lack any agriculture background. While well-meaning individuals, these board members are ill equipped to render sound, informed decisions concerning this critically important industry.”

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