A wage board at the New York State Department of Labor approved a proposal to lower overtime to 40 hours per week for farmworkers. That goes against the wishes of many farm owners who testified from across the state to keep overtime to 60 hours.
The Farm Laborers Wage Board had a series of virtual hearings in January. With hundreds of farm owners, farmworkers and independent researchers attending the hearings, over 60% of those who testified wanted the wage board to keep the threshold at 60 hours.
Steven Mudd, who operates Mudd’s Vineyard in eastern Long Island, said 2021 was the most expensive year to keep his winery open compared to almost 50 years in business.
But the wage board based part of their decision on data that shows that income for New York farms increased last year, which confused Mudd.
“I really would suggest that the state would get more information versus just 2021 and again that's confusing to me how they can show the farm incomes are up across the board when people haven’t even finished filing their income taxes,” Mudd said.
Supporters, including labor unions, pushed for the change, saying farm laborers are the only category of workers who have not fallen under the state’s labor laws that require overtime pay after 40 hours of work per week.
Mudd also thinks that the Wage Board should look to follow California, which updated its overtime policy in 2016 and took effect in January of this year. It called for agricultural employers with over 25 workers to start overtime pay at 40 hours.
“[California] took six years to implement this,” he said. “We had this new overtime, north of 60, voted in three or four years ago and in four years, it got implemented.”
Robert Carpenter, director of Long Island Farm Bureau, which represents over 500 farms, told the board that they needed to consider the additional expenses of farm owners.
“Fertilizer, fuel, minimum wage increases, regulation, climate change, are all factors that are going to need to be weighed in the future and should be taken very seriously,” Carpenter said.
He said he also questioned some of the information that the Department of Labor presented at a previous hearing. According to a 2020 law, which scheduled the review of farmworker overtime, the state was supposed to compare similar businesses.
“The similar businesses that they chose, restaurants, landscapers and some other service businesses, are not similar to agriculture,” Carpenter said. “First of all, those businesses compete in local markets, not in a world market like the agricultural industry.”
Carpenter is concerned lowering the overtime limit could lead to higher local food prices and an increase in out-of-state products that would put farms out of business.
He said a 2017 study found that 5,000 acres of Long Island farmland was lost mainly to development because farmers couldn’t afford to pay for the upkeep of their land.
The overtime change wouldn’t take effect until 2024 and would be phased in over eight years.
David Fisher, president of the New York Farm Bureau and a dairy farmer in St. Lawrence County, is on the three-person wage board and was the only member to vote against the plan.
“To drop the threshold to 40 hours over the next decade will be extremely difficult for farmers and farmworkers alike to absorb,” Fisher said. “And will change the face of New York agriculture.”
Fisher said farm owners, who recently adapted to a 60-hour workweek, down from 80 hours, can’t afford to pay the amount of overtime that a 40-hour limit would require. He and other farmers predict that many will grow and harvest fewer fruits and vegetables and produce less milk. He said it might cause some to leave farming altogether.
Fisher said he’s also concerned that the full board did not review all of the testimony collected during public hearings held on the proposal. He said at least a dozen videos from opponents were not viewed at all. He said 70% of the testimony came from opponents, who said the measure would also hurt farmworkers.
“It will mean fewer hours and less income, and force those wanting to find more work to find a second job or leave New York state,” Fisher said. “We can’t afford to lose our skilled workforce.”
The Farm Bureau is asking Gov. Kathy Hochul to “rethink” the wage board decision, and override the vote.
Jeff Williams, public policy director for the bureau, said they will “make every effort” to convince Hochul to modify or reverse the decision.
“This decision is firmly placed at the feet of Gov. Hochul,” Williams said. “It’s up to this governor to decide whether she wants a meaningful agricultural industry in this state. And if she doesn’t change her mind, it’s not going to be meaningful.”
Hochul, in her state budget plan, has proposed a tax credit to help offset the overtime pay required under the change. Fisher said it “looks good on paper,” but he will need to see details of whether it’s a good solution.
Williams said farmers are concerned that if they would have to pay the workers the overtime first and then wait until the tax returns are processed the following year to apply the tax credit, that could create cash flow problems.
“If we could think of some way to make that an easier process, a quicker process, that’s something definitely worthy of exploring,” Williams said.
Unless Hochul acts to change it, the phase-in to a 40-hour workweek for farm laborers begins in January 2024, with the institution of a 56-hour workweek.
A spokesman for Hochul, Jim Urso, said in a statement that: “Governor Hochul is committed to making New York the most business-friendly and worker-friendly state in the nation and has proposed major investments in her Executive Budget to boost the State’s agricultural industry — including a significant tax credit package that would support both farmers and farm workers. We are confident that (New York State Department of Labor ) Commissioner (Roberta) Reardon will review the Board’s recommendations closely and ensure that the final decision puts the State on a path to improve the lives of farm workers while protecting New York’s vital farm industry.”
