NY farmworkers’ overtime pay rules OK'd

Farmworkers in New York State will begin receiving overtime pay for working over 40 hours in a week — in 10 years. 

That’s how long new Department of Labor rules will take to fully kick in after it officially adopted regulations that, beginning next January, incrementally lower overtime thresholds for farm laborers from the current 60 hours. 

The overtime rules followed recommendations from a split Farm Laborers Wage Board, which in January 2022 sanctioned the lowering of the 60-hour ceiling in 4-hour increments every two years. Farmworkers will now be due overtime pay after working 56 hours on Jan. 1, 2024. The threshold will reach 40 hours on New Year’s Day 2032.

“These new regulations ensure equity for farm workers, who are the very backbone of our agriculture sector,” Labor Commissioner Roberta Reardon said in a statement. “By implementing a gradual transition, we are giving farmers time to make the appropriate adjustments. These new regulations advance New York State’s continued commitment to workers while protecting our farms.”

Governor Kathy Hochul last year signed tax-credit legislation intended to support farmers as the overtime regulations come into play. Included among the bills passed by the Legislature is a refundable overtime credit for farm owners, essentially a subsidy designed to offset the OT costs.

Still, farm owners and some lawmakers have argued that overtime pay would squeeze farmers beyond what they could afford. And farmworkers themselves have suggested that the new regulations could in fact decrease their earnings as farmers look for ways to mitigate the associated labor costs by hiring more workers, lessening the likelihood that they would have to pay overtime. 

That in effect would decrease the number of work hours for farmworkers, which in turn could lead to a labor shortfall, according to a 2021 report by Cornell University researchers that considered the potential effects of overtime laws. 

A survey of farmworkers, most of whom are seasonal nonimmigrant workers who enter the country under the provisional H-2A visa program, included in the report found 70 percent of the workers “indicated that they would consider going to a state without limits on weekly hours.”

But an immigration expert, citing the H-2A program’s restrictions, called the survey “flawed and misleading.” 

In testimony to the Wage Board, the director of Immigration Law and Policy Research at the Economic Policy Institute, Daniel Costa, said that although H-2A workers might “consider” working elsewhere, doing so would be neither practically nor legally feasible since workers’ visa status are tied to particular jobs with specified employers. “H-2A workers do not have a choice in the matter because they do not have the practical ability to change jobs and find another employer to work for, whether in New York or any other state,” Costa said. 

‘Out of touch decision’

Last month, five Upstate members of the House of Representatives, all of them Republicans, introduced legislation that would amend the federal Fair Labor Standards Act of 1938 to keep farmworkers’ overtime threshold at 60 hours. 

One of the five, U.S. Representative Elise Stefanik, who represents the sweeping 21st District, which includes all of 12 counties and portions of three others in northernmost New York, blamed “Albany Democrats” for the new rules, arguing they had ignored concerns from farmers and also most testimony given at the Wage Board hearings about the overtime proposal, which she argued would put thousand of laborers out of work. 

“This out of touch decision makes New York less competitive and will exacerbate the existing labor shortage our farmers are already facing,” Stefanik said. 

The new regulations culminate a three-year process that included hearings by the Farm Laborers Wage Board, which was convened in 2019 as part of the Farm Laborers Fair Labor Practices Act. That statute provides that farmworkers get overtime pay for working in excess of 60 hours a week. The act also extended other protections to farmworkers, including the right to form a union, which until then they had been unable to do by law. 

43% of average pay

About 20 percent or nearly 7 million acres of the state’s land area is farmland and employment on New York farms has grown steadily in the last decade, with a slight dip in 2020 in crop-production employment attributable to the pandemic, according to an August 2022 report by the state comptroller’s office. The state is among the nation’s top producers of dairy products, apples, maple syrup and grapes. 

And while wages paid to both crop and animal production labor have increased significantly since 2011, with total wages rising from under $600 million to nearly $1 billion in 2021, average annual pay for crop production laborers in 2021 was $38,143, about 43 percent of the state average for all occupations, according to the comptroller’s report.

The federal Fair Labor Standards Act, enacted in 1938, before the rise of agribusiness and the widespread mechanization of farm labor, exempts farmworkers from federal overtime pay provisions. While individual states can enact their own overtime rules, just six states, including New York, had done so through January 2022, according to the National Agricultural Law Center.

Most employees in the state receive overtime pay at the rate of 1.5 times — so-called time and a half — their regular pay rate for every hour they work after working 40 hours in a workweek. Among workers exempt from the state’s overtime provisions are executive, administrative and professional employees; government employees; cab drivers; members of religious orders; and some who work for religious or charitable institutions.

richardk@thechiefleader.com