State to phase in 40-hour work week with mandated overtime for farm laborers

Farmworkers in New York will be entitled to overtime after 40 hours beginning Jan. 1, 2032, under an order signed yesterday by the state labor commissioner.

The order requires a phased reduction of the overtime threshold for farm laborers from the current 60 hours to 40 hours over the next decade.

The overtime threshold will be reduced to 56 hours on Jan. 1, 2024, to 52 hours on Jan. 1, 2026, 48 hours on Jan. 1, 2028, 44 hours on Jan. 1, 2030 and 40 hours on Jan. 1, 2032.

The order requires an employer to pay farm laborers at the rate of one- and one-half times the employee’s regular rate of pay for hours worked in excess of the threshold.

In issuing the order, N.Y. Commissioner of Labor Roberta Reardon accepted the Sept. 6 final report and recommendation of the Farm Laborers Wage Board made after a two-year process and and 14 public meetings and hearings. The final report and recommendation followed the board’s initial recommendations on Jan. 28.

Farmworkers remain one of the only categories of hourly workers in New York state that are denied overtime at 40 hours.

New York Civil Liberties Union, which advocates for an immediate reduction in the threshold to 40 hours, called the commissioner’s order a “historic step” toward ending “the racist exclusion that has stolen countless hours of overtime pay” from farm laborers.

“New York will prevent future generations of workers from suffering by bringing overdue wage fairness to farmworkers, eradicating this racist Jim Crow policy once and for all,” NYCLU Executive Director Donna Lieberman said in a statement issued yesterday. “Now, New York’s agriculture industry will no longer be able to use an overtime loophole to build their business plans on the backs of Black and Brown workers,” Lieberman said.

The New York Farm Bureau opposed the imposition of a 60-hour overtime threshold by state legislation in 2019 and advocated against any reduction in the threshold. In a statement issued after yesterday’s announcement by the Department of Labor, N.Y. Farm Bureau President David Fisher said the ruling “will make it even tougher to farm in this state and will be a financial blow to the workers we all support.”

With a lower overtime threshold in place, Fisher said, “farms will be forced to make difficult decisions on what they grow, the available hours they can provide to their employees, and their ability to compete in the marketplace.” These things were highlighted in testimony and data, Fisher said, but the wage board report and the commissioner “simply ignored” them.

First Congressional District Rep. Lee Zeldin (R-Shirley), the Republican nominee for governor, said “lowering the overtime threshold will only result in reduced hours for these workers” because “farmers will need to cut hours or move to less labor-intensive goods and move to those that are machine oriented” in order to make ends meet. The rule will increase costs that will be passed on to consumers, he said.

NYSDOL will now be undergoing a rule making process which will include a 60-day public comment period. Further details about the rule-making process will be posted on the Farm Laborers Wage Board page when they are available.

New York’s Farm Laborers Fair Labor Practices Act of 2019, which took effect Jan. 1, 2020, for the first time mandated overtime for farmworkers, set a 60-hour overtime threshold and required time-and-a-half overtime pay after 60 hours. It also required 24 hours of consecutive rest per week, allowing the worker to choose to work with overtime pay.

The act also for the first time recognized farm workers as “employees” under the the New York State Employment Relations Act, providing for the right to organize and collectively bargain. It expanded unemployment insurance and disability insurance coverage to farmworkers and established eligibility for disability benefits.

The legislation faced stiff opposition from the N.Y. Farm Bureau and was opposed by all three East End state lawmakers at the time.

Former Sen. Ken LaValle (R-Port Jefferson) said the bill had “great potential” of driving small family farms out of business, resulting in the loss of farmland to development.

Sen. Anthony Palumbo (R-New Suffolk), who was then a member of the assembly, predicted produce prices would rise and hundreds of farms would go out of business as a result of the legislation. “Farmers cannot afford more regulations,” Palumbo said.

Farming is not like any other business, Palumbo said at the time. “There are many variables that are beyond the farmer’s control, such as weather, growth of crops, disease and other factors creating an unpredictable work schedule,” he said. “Some days they work for three hours, others they work for 19. The proponents of this bill did not take these concerns into consideration and the bill will be devastating to the farmers of this state,” Palumbo said.