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State board breaks with farmers on overtime pay standards

Joe Mahoney, CNHI State Reporter
Posted 9/9/22

The state Farm Labor Wage Board voted 2 to 1 Tuesday to recommend to the Hochul administration that New York gradually reduce the overtime threshold for farm workers in New York from 60 hours …

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State board breaks with farmers on overtime pay standards

Posted

ALBANY  — The state Farm Labor Wage Board voted 2 to 1 Tuesday to recommend to the Hochul administration that New York gradually reduce the overtime threshold for farm workers in New York from 60 hours per week to 40 hours.

The sole objection came from David Fisher, president of the New York Farm Bureau, the leading advocate for the thousands of working farms in New York.

“I knew the cards were stacked against the position of my organization and what agriculture truly believes is best for farms, farm workers and the food supply,” Fisher told his fellow board members, Brenda McDuffie and Denis Hughes,

Fisher complained the report accepted by Hughes and McDuffie failed to mention that an analysis of the impact of reducing the overtime threshold would prompt employers to reduce hours for workers, which in turn would spur most migrants to spurn jobs in New York and go to other states where they could work more hours.

“The facts can’t be ignored even if the report doesn’t give them their due diligence,” Fisher said.

McDuffie, former head of the Buffalo Urban League, had a different view, stating: “We believe this decision protects the rights of farm laborers while taking into account the needs of farmers.”

She also argued the board has a “duty to protect tens of thousands of farm workers and align their rights with those in other industries.”

Under the plan, the overtime threshold would drop to 52 hours per week at the beginning of 2026, and then go down to 40 hours starting Jan. 1, 2032.

Numerous GOP elected officials slammed the decision, including Rep. Elise Stefanik, R-Saratoga County, Senate GOP Leader Rob Ortt, R-Niagara County, Sen. Dan Stec, R-Queensbury, and Assemblyman Chris Tague, R-Schoharie County.

“These Democrats in Albany are doubling down on their reckless overtime decision, jeopardizing New York’s agriculture industry, putting thousands of farm laborers out of work, and making New York less competitive by forcing our workers to seek labor opportunities in neighboring states, all while in the midst of a labor shortage,” Stefanik said.

The debate over farm wages has also surfaced in the governor’s race, with Rep. Lee Zeldin, R-Long Island, emerging as a forceful ally of the Farm Bureau.

Gov. Kathy Hochul, a Democrat, and several of her aides took what she called a “listening tour” of several farms this
summer.

Her aides did not respond when asked by CNHI whether she has made any findings as a result of those farm visits. The Hochul administration now has 45 days to respond to the report, which is likely to set the stage for additional publicity on the controversy at about the same time early voting begins for the November 8 general election.

One influential Democrat, Assemblywoman Donna Lupardo, D-Broome County, chairwoman of the Assembly agriculture committee, acknowledged New York farmers are opposed to an additional change in the overtime rules.

“They are concerned that even with the negotiated overtime tax credit, they will be at a competitive disadvantage with other states in the region,” Lupardo said. The lawmaker added she is calling on the federal government to address issues of “grave importance” to farmers, including “immigration reform and updating 1930’s era farm wage rules.”

The report suggested that some farmers have been paying their laborers off the books, which would be a violation of state labor law.

Fisher attacked that accusation. “This claim is actually untrue, and even if it was true, this is (Department of Labor’s) failure to enforce their own regulations,” the Farm Bureau leader said.

The Department of Labor, responding to a CNHI inquiry, said it has investigated reports of farm workers being paid under the table. The agency also noted some workers have been reluctant to lodge complaints out of fear of retaliation. Many New York farm workers are undocumented immigrants.

The New York Civil Liberties Union, which has pushed for a 40-hour overtime threshold, argued the standard should be implemented immediately by Hochul and her labor commissioner, Roberta Reardon, saying to do so would be “eradicating this racist Jim Crow policy once and for all.”

Agriculture was exempted from federal labor standards adopted in 1938. The Depression-era law, adopted before widespread mechanized farming, exempted farms from the overtime rules, with advocates then citing the seasonal nature of agriculture.

Meanwhile, the Northeast Dairy Producers Association urged that the recommendation be rejected, arguing consumers, schools, food pantries and farm workers themselves will be negatively impacted if they are implemented. The association said 70% of the farm workers who participated in a series of hearings held by the wage board had urged that the threshold remain at 60 hours.

An even more dire warning was issued by Upstate United, a pro-business advocacy group. It predicted the wage board recommendation will become “a death sentence for many family farms across the state.” The group noted New York has lost an estimated 3,800 farms in the past 20 years.

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