New Overtime Regulations a "Great First Step" Toward Labor Fairness for New York Farmworkers

By Eddie Velasquez

A Workers’ Center member prepares hay for feeding.

Source: Workers Center of New York

An almost century-long fight to bring parity to farmworkers’ labor standards in the state of New York is moving forward following the state’s Wage Board decision on Jan. 28 to lower the overtime threshold from 60 hours per week down to 40, the standard working week in most other industries.

 The overtime threshold would be lowered down to 40 hours per week in phases over the next 10 years, according to a deliberation from the state’s Wage Board, which was installed by state officials to make this exact determination. Based on the board’s recommendations, the phase-in schedule will begin on Jan. 1, 2024 with the threshold set at 56 hours. From there, the threshold would be reduced by four hours every two years, culminating in an overtime threshold set at 40 hours per week in 2032. It is now up to current Gov. Kathy Hochul to accept the Wage Board’s decision and ratify their recommendation.

The Wage Board is composed of three business, labor and nonprofit leaders. It includes New York Farm Bureau (NYFB) President David Fisher, former New York State American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) President Denis Hughes and former Buffalo Urban League President and CEO Brenda McDuffie. The board hosted three public hearings that drew the testimony of several agricultural workers in favor of the reduction of the overtime limit, as well as staunch opposition to these changes from farmers and seasonal farmworkers.

While workers and farmworker advocates say the board’s decision is a net positive, more needs to be done to equalize what they describe as an inherent power imbalance between employer and employee in one of the country’s fastest growing agricultural industries. The U.S. Department of Agriculture (USDA) estimated that in 2020 there were 33,400 farms in New York. From 2014-2019 farms contributed $43.6 billion toward the state’s total industry output, as well 160,100 jobs, according to a report published in 2021 by Cornell University.

Yoselin, a Guatemalan-born 25-year-old single mother working at a dairy farm in the upstate county of Onondaga, reflected on what the changes will mean for her family. She noted she has worked at the same farm for the past three years, at a rate of 58-60 hours per week.

“(The new overtime threshold) has the chance to be so much better, because as someone who is a mother, I would have way more time to spend with my child,” Yoselin said.

The new recommendation from the board could benefit those seeking employment, Yoselin said.

“I would think it can help new workers getting hired since I imagine farmers won’t want to pay a lot in overtime,” she said.

Another Cornell University report on the impact of New York’s overtime laws on agricultural production, costs, and competitiveness suggests several of the 40 farms probed would see some adverse economic impact. The report was commissioned by the state and compiled with data from Farm Credit East, an entity that provides financial and credit services to agricultural producers in the northeast and has been highly critical of measures that would lower the overtime threshold for farm laborers.

With the effects of the COVID-19 pandemic and under a 60-hour overtime threshold, hired labor at 20 dairy farms out of the 40 total farms accounted for close to 17 percent out of the total operating expenses, the report indicates. On average, the study says, dairy farms generated $5.6 million in sales in 2020, but there is also a wide range of variance in revenue across the whole sample.

Under a 40-hour overtime threshold, 13 out of the 20 dairy farms surveyed in the report indicated they would move out of milk production, invest in dairy in other states, or exit agriculture altogether.

Half of the other 20 farms surveyed, which specialize in fruit and vegetable crops, also noted they would downsize or halt operations.

At Yoselin’s farm, women are instructed to never reach the current 60-hour threshold.

“The farmer pays for overtime, but only for the men,” said Yoselin, who added she spends most of her shift milking cows. “There is more work for men at the farm than there is for women.”

For labor organizers and immigration advocates, securing this decision from the Wage Board is also about farm laborers being recognized as workers.

“Dairy farm work wears down on you, on your shoulders, your arms, and your chest,” said Crispín Hernández, a former dairy farm worker who is now a labor organizer with the Workers Center of Central New York. “We are not machines. We want the Wage Board, government officials, and consumers to understand this, to understand we need to be paid fairly. It is our basic human right.”

Hernández, 27, hails from southern Mexico and is of Mixtec descent. He arrived in the U.S. in 2012 at 17 years old to work at a dairy farm in upstate New York that had 10,000 cows. Frustrated with the lack of basic protections for farmworkers and an overall respect for what he qualified as hard labor, Hernández sued New York state in 2016.

In the suit, Hernández said he was denied a day off, overtime pay and the chance to collective bargain by the dairy farm that employed him in Lewis County, challenging an 80-year-old-law that grants those rights to laborers in the state — excluding farmworkers. The suit was filed at the New York Supreme Court in Albany County. In 2018, a judge dismissed the lawsuit, arguing the law was not discriminatory, prompting Hernández to file an appeal to the appellate division later that year. The appeal eventually served as the foundation for the Farmworkers Fair Labor Practices Act (FFLPA).

“I am very happy (with the Wage Board’s decision), but we want to wait for it to be official,” he said. “I remember winning our lawsuit at the State Supreme Court and feeling very happy for the work we have done. This is all work laid out for decades that is slowly being pushed for.”

NYFB against migrant workers

In a press release issued Jan 31, the NYFB vehemently opposed the Wage Board’s decision. 

“In the end, the decision was made with little deliberation or reflection of the testimony,” said NYFB President Fisher.

Fisher added the testimony provided at the hearings from farmers and temporary farm workers under H-2A visas in support of the current overtime threshold of 60 hours per week was overwhelming evidence of the current guidelines’ effectiveness.

“I would have hoped my fellow board members would have considered more of the impacts that this will have on agriculture,” he said.

The NYFB alludes to a loss of working hours for farm laborers due to the overtime threshold reduction in their policy priorities for 2022, adding the loss of income would leave workers seeking a second job or leaving the state altogether.

“We saw how important (agriculture) was in the pandemic for consumers and food banks,” Fisher said. “We heard testimony that labor will be too expensive, and hours will be limited so there won’t be that excess product to give away.”

Hernández said he sees these accounts as a way for farmers to dominate the narrative.

“Farmers are using migrant workers for their own interests, and that is really unfair,” he said.

Kayla Kelechian —an engagement manager at the New York Immigration Coalition (NYIC) for coalition members based in the central New York region, which includes Onondaga County — said any attempts to stabilize the fiscal situations at struggling farms should not come at the expense of workers.

“If I were to agree that the situation is also bad for farmers, that would mean I am agreeing it is okay to exploit someone for the labor just because someone else has it bad,” Kelechian said. “Part of what the farm bureau should think about is that there are bigger evils to fight like mass corporations. If farmers are having it bad, then they should be even more empathetic toward their workers.”

Part of the opposition from farmers and farmers’ interest groups to the lowering of the overtime threshold hinged on the pandemic’s economic impacts on small agriculture. To Hernández, those claims are untrue. In his time organizing farm labor during the pandemic, he said, the work has not stopped.

“We are living in a global pandemic and food production has not stopped. Thanks to our efforts and our hard work, there is food at the supermarket. When we go to the supermarket, there is an abundance of avocados, which come from Mexico, and bananas, which come from Guatemala.Workers are not stopping, they are still working hard all over the world.”

In the end, farm workers see this decision by the Wage Board as a victory and a way to build up a foundation of labor power for generations to come.

“We are very happy because we were able to win our fight and one secure one more (protection for workers), but this is mostly for the younger generation who are going to come into work [in]better conditions (in 10-years-time),” Yoselin said. “But for those of us who are working now, this is not very convenient right now because we are going to be so much older by the time the 40-hour-work-week comes into play.”

Eddie Velazquez is a freelance journalist based in central New York, covering education, housing, and local politics. You can find more of his work on his website, and on his twitter feed.