NEW YORK — Some of the state’s fresh produce industry leaders say the proposed New York Farm Laborer Fair Labor Practices Act will hurt the agricultural industry, but they are relieved to have reached some compromises before it’s expected to be signed into law.
The bill passed the Democratic majority-led state Assembly and Senate in June and is expected to be signed by Gov. Andrew Cuomo. There were several public hearings for growers and farm workers, as well as revisions.
Legislation S.6578, sponsored by Sen. Jessica Ramos, grants collective bargaining rights, workers’ compensation and unemployment benefits to farm laborers. It also addresses the standards of working conditions, unemployment insurance and a sanitary code for all farm and food processing labor camps intended to house farm laborers.
Growers say the biggest sticking points were the required overtime pay after 40 hours, the right to strike during harvest and a mandatory day of rest.
One of the biggest negotiated changes was extending the hours worked from 40 to 60 hours before overtime pay kicks in.
That was a good compromise from an apple industry perspective, said Alisha Albinder Camac, director of operations of Milton, N.Y.-based Hudson River Fruit Distributors. She’s a board member of the U.S. Apple Association, New York Apple Association and New York State Horticultural Society.
“We still think it’s going to be hard. It’s definitely going to be expensive,” Camac said, adding that growers often can’t pass on the increased costs to consumers by raising prices.
“In a commodity-based market, like apples, where we don’t get to just dictate the price we want because of competition in other states like Pennsylvania that don’t have the same rules that we have, (overtime after 40 hours) would’ve been very detrimental,” she said. “And I still think it’s going to be detrimental.
“I think smaller farms are going to go out of business, farmers who were holding on by a thread. I think it’s not conducive to growing the economy, the farming economy in New York State.”
Others growers say they hope their wins won’t be short-lived because some clauses may change the law.
“We put up a big fight, but it passed with a few zingers,” said Brian Reeves, president of the New York State Vegetable Growers Association and owner of Reeves Farms, Baldwinsville, N.Y.
Reeves said there’s a possibility the workweek hours could drop because a wage board was appointed to study the effect and give a report at year’s end.
Guest farm workers from other countries want to work as much as they can while in the U.S., both Reeves and Camac said.
“The guys I got here are H-2A workers; they leave their families four to six months at a time. Would you like to sit around playing cards and watching TV?” Reeves asked. They’d love to have 60 to 70 hours in a week. They want to work and earn every buck they can so they can get back home.”
A few other states allow farmworkers to get overtime pay. The country’s largest agricultural state, California, passed a law in 2016 that gradually phases in overtime pay after a 40-hour week over four years, starting this year with overtime pay guaranteed after 55 hours. Before this year, farmworkers received overtime after 60 hours.
Reeves is curious to see how that change will work out in California.
New York’s previously approved minimum wage increases will compound this added expense.
The increase in labor costs resulting from mandatory overtime pay and the $12.50 minimum wage when fully implemented is estimated to reduce net farm income by 23.4%, according to a February 2019 study by Farm Credit East.
However, the Fiscal Policy Institute, a proponent of the new law, released a study in May that estimates farm employers will see a loss of 9% at most if farmers absorbed all the increased costs of overtime pay, and no more than 2% if costs were able to be passed on to consumers through higher prices.
True, farm employers could hire additional workers to avoid paying overtime, but Farm Credit East estimates not more than 15% of overtime hours could be replaced by hiring new workers.
About 98% of New York’s farms are family-owned, according to the U.S. Department of Agriculture’s 2017 Agricultural Census, with relatively narrow margins and an inability to raise prices of the food they grow and sell. That makes competing with other states and countries with lower minimum wages and no mandatory overtime pay tough, Camac and Reeves said.
“Workers rarely see the money from overtime because business owners don’t want to give that,” Reeves said.
Farm workers in New York State have historically earned higher minimum wages than other types of employees working in the state.
The adverse effect wage in New York for 2019 is $13.25. Upstate New York’s minimum wage for other types of workers is $11.10, and will rise to $12.50 by the end of 2020 and continue to rise annually until it reaches $15.
The Department of Labor’s H-2A regulations require employers to pay their H-2A temporary agricultural workers whatever wage is the highest of these rates:
- Adverse effect wage rate
- Prevailing wage or prevailing piece wage
- Agreed-upon collective bargaining wage, if applicable
- Federal or state minimum wage
Both Camac and Reeves said their H-2A guest workers have been coming back to them for many years, and they form a highly valued, productive foundation to their businesses.
“Ultimately, we care about our workers and want to make sure they have enough hours. We don’t want to be in a situation in which we limit them to only 40 or 60 hours a week because we can’t afford to pay them the overtime, when they want to work 80 hours a week,” Camac said. “Our guys will work every day, all day long if they can. Obviously, if they don’t want to, they don’t, and we don’t make them.”
The nature of the fresh produce industry — bursts of long hours in between dormant periods — was always a huge factor in why farmworkers were exempt from these rules, growers say.
“It’s very difficult because when the fruit’s ready, the fruit’s ready,” Camac said.
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