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NYS appears poised to approve 40-hour overtime threshold for farmworkers

 Crispin Hernandez talks with WAER through an interpreter in 2019.
Scott Willis
Crispin Hernandez talks with WAER through an interpreter in 2019 after a state appellate court declared unconstitutional an exclusion in state law that denies farmworkers the right to organize and collectively bargain. The victory set the stage for changes in overtime policies.

Farmers in Central New York and across the state could eventually have to pay farm workers overtime if they work over 40 hours per week.  The previous threshold was 60 hours set in 2019.  Some are applauding the decision, while others say it’ll create hardship. 

The state’s farm laborer wage board made the recommendation to the labor commissioner late Friday. Lisa Zucker is Senior attorney for legislative affairs at the New York Civil Liberties Union. She says there’s no indication that it won’t be enacted.

"As a state, we have made a policy decision that it's important to protect workers, even when it affects the bottom line. Which is why in New York, no other businesses are excluded from paying their workers overtime pay."

The decision builds upon the state’s Farm Labor Fair Labor Practices Act of two years ago, which granted the right to organize, workers compensation, and a day of rest.

The New York Farm Bureau warns the new overtime threshold threatens the well being of farms and farm workers. President and dairy farmer David Fisher says they’re asking Governor Hochul to rethink the wage board’s decision.

"We appreciate that she's looking for a creative solution by proposing a tax credit to offset overtime pay. It's something that looks good on paper. But there will be many challenges for our farms that will still have to come up with the cash, and it could be hundreds of thousands of dollars in overtime costs before they see a credit a year to a year and half later."

Fisher says the new threshold will likely force farmers to reduce hours, presenting a potential dilemma for farmworkers.

"They'll probably have to go someplace else to find a second job instead of having the opportunity to make the income they want at one place. Also, the federal guest worker program does not allow workers to work at two different places."

He says a study by Cornell University showed that the majority of farmworkers don’t want to be limited to 40 hours, and could cause them to leave the state.

NYCLU attorney Lisa Zucker says the old labor practices date back to the 1930’s when President Roosevelt carved out an exemption to get southern, mostly segregationist democrats on board with his New Deal.

"When we talk about a policy rooted in racism that becomes so commonplace, people don't even notice it. Generations of farmers have built their business models on this exclusion which resulted in underpayment and overwork of farm workers. At some point, it has to end."

If approved by the labor commissioner, the 40 hour threshold will be phased in over ten years, starting in 2024. The case was brought by former farmworker Crispin Hernandez and the Workers’ Center of Central New York.

By Karen DeWitt

Members of the New York State Farm Bureau are reacting to a state labor board decision to a ten year phase in a 40 hour work week for farm laborers. They warn that could severely diminish the state’s agricultural industry, which is largely made up of small, family owned farms.

Late on Friday, the Farm Laborers Wage Board announced that a 40 hour work week will be required for farmworkers, beginning in 2032. When workers reach that limit, they will be eligible for overtime pay. The requirement will be phased in over the next ten years.

David Fisher, President, of the New York Farm Bureau and a dairy farmer in St. Lawrence County, is on the three person wage board, and was the only member to vote against the plan.

To drop the threshold to 40 hours over the next decade will be extremely difficult for farmers and farm workers alike to absorb,” said Fisher. “And will change the face of New York agriculture.”

Fisher says farm owners, who recently adapted to a 60 hour work week, down from 80 hours, can’t afford to pay the amount of overtime a 40 hour limit would require. He and other farmers predict that many will grow and harvest fewer fruits and vegetables, and produce less milk. He says it might cause some to leave farming altogether.

Supporters, including labor unions, pushed for the change, saying farm laborers are the only category of workers who have not fallen under the state’s labor laws requiring overtime pay after 40 hours of work per week.

Fisher says he’s also concerned that the full board did not review all of the video testimony collected during public hearings held on the proposal. He says at least a dozen videos from opponents were not viewed at all. He says 70% of the testimony came from opponents, who said the measure would also hurt farmworkers.

It will mean fewer hours and less income, and force those wanting to find more work to find a second job or leave New York State,” Fisher said. “We can’t afford to lose our skilled workforce.”

The Farm Bureau is asking Governor Kathy Hochul to “rethink” the wage board decision, and override the vote.

Jeff Williams, public policy director for the bureau, says they will “make every effort” to convince Hochul to modify or reverse the decision.

“This decision is firmly placed at the feet of Governor Hochul,” said Williams. “It’s up to this governor to decide see whether she wants a meaningful agricultural industry in this state. And if she doesn’t change her mind, it’s not going to be meaningful.”

Hochul, in her state budget plan, has proposed a tax credit to help offset the overtime pay required under the change. Fisher says it “looks good on paper”, but will need to see details of whether it’s a good solution.

Williams says farmers are concerned that they would have to pay the workers the overtime first, and then wait until the tax returns are processed the following year to apply the tax credit, and that could create cash flow problems.

“If we could think of some way to make that an easier process, quicker process, that’s something definitely worthy of exploring,” Williams said.

Unless Hochul acts to change it, the phase in to a 40 hour work week for farm laborers begins in January of 2024, with the institution of a 56 hour work week.

A spokesman for Hochul, Jim Urso, released a statement:

“Governor Hochul is committed to making New York the most business-friendly and worker-friendly state in the nation and has proposed major investments in her Executive Budget to boost the State’s agricultural industry—including a significant tax credit package that would support both farmers and farm workers. We are confident that (New York State Department of Labor ) Commissioner (Roberta) Reardon will review the Board’s recommendations closely and ensure that the final decision puts the State on a path to improve the lives of farm workers while protecting New York’s vital farm industry.”

Scott Willis covers politics, local government, transportation, and arts and culture for WAER. He came to Syracuse from Detroit in 2001, where he began his career in radio as an intern and freelance reporter. Scott is honored and privileged to bring the day’s news and in-depth feature reporting to WAER’s dedicated and generous listeners. You can find him on twitter @swillisWAER and email him at
Karen DeWitt is Capitol Bureau Chief for New York State Public Radio, a network of 10 public radio stations in New York State. She has covered state government and politics for the network since 1990. She is also a regular contributor to the statewide public television program about New York State government, New York Now. She appears on the reporter’s roundtable segment and interviews newsmakers. Karen previously worked for WINS Radio, New York, and has written for numerous publications, including Adirondack Life and the Albany newsweekly Metroland.