Farmers grapple with new labor laws at forum

A new state law on payment and work conditions of farmworkers kicked in Jan. 1 and has some New York farmers worried about how to comply with the new rules on farm labor while still making enough money to stay in business.

The New York Farm Laborers Fair Labor Practices Act allows farmworkers to earn overtime pay after 60 hours, provides a day of rest (24 hours in a row) once every seven days, and allows workers to elect a union to represent them or bargain for wages or conditions collectively.

Complicating matters is a suit filed by the New York State Vegetable Producers Association on Dec. 31 that has resulted in a temporary injunction until Jan. 26 on enforcing parts of the state law, such as the definition of exempt family members. The suit contends that the law’s definition of family is too narrow – spouses, children and parents of a single family. In reality, many family-run farms involve other close relatives such as nephews, uncles, cousins and grandchildren. There’s also question about which kinds of employees might be considered exempt from the law’s provisions because they fall into management.

Close to 100 people from a range of farm types attended the vegetable producers’ annual Becker Forum earlier this week in downtown Syracuse, where labor and law experts answered as many questions as they could about the new laws and regulations. While many of their answers were quite specific, the experts often said they are waiting for the court case to be decided or other events for more clarity.

One set of answers that seemed to provide relief revolved around providing a day of rest each week for farm laborers. Joshua Viau, an attorney with the Atlanta law firm of Fisher Philips, said the new state law allows some flexibility in scheduling rest days to deal with the realities of farm work. While the law says employers should accommodate workers’ regular day of worship if possible, they don’t have to schedule the same day every week, Viau said. Indeed, they don’t even have to specify at the beginning of the week which day will be the day of rest because they can wait for weather to determine a rest day.

Days off can also be different for each employee so the workforce can be staggered. And the farm can determine when the week begins and ends, rather than having a workweek coincide with a Sunday to Saturday week.

Maureen Torrey, a 12th generation farmer from Genesee County who has become a national farming advocate, said if she had a job that needed 25 workers, she’d hire 30 workers and then stagger their days off so she’d always have 25 workers available without having to go into overtime.

Laborers can work on their day of rest, Viau said, but only if they want to and they must receive overtime then. He recommended that to make sure the work is truly voluntary, employers should document each time a worker agrees to work on their day off.

Overtime gets complicated when laborers are working by piece rate. Viau said employers have to track how much the workers are making by piece rate for a given period, then divide to find the hourly wage, then use that to calculate overtime rate. They also must determine that the worker is getting at least minimum wage in that scenario, he said.

If farmers limit their workers to 60 hours so they aren’t paying overtime, the workers can go down the road to another farm to get additional hours – as long as they’re not working under the federal H2A program that stipulates workers can only work at one site. But Viau said he’s not comfortable with the employers making such arrangements between farms.

He also recommended that if farmers intend to offer overtime hours to workers, they create a non-discrimination policy and follow it to avoid lawsuits or complaints in that area. Offering work only to the farm’s Jamaican workers, but not the Mexican workers, for instance, could be construed as discrimination.

Jill MacKenzie, an owner of Two of Clubs Orchard in Appleton, Niagara County, said she found the information she heard at the forum useful in terms of overtime and the day of rest requirements. She doubted, however, that unionization will be an issue on her farm.

The United States’ failure to pass a new immigration policy has meant that foreign workers are no longer going back and forth across the borders as much and the farm workforce is aging out, MacKenzie said. The youngest people who gained immigration amnesty in the Reagan administration are now in their late 50s, she said.

MacKenzie said she has one worker from the Dominican Republic who is in his 60s, and two Mexican workers with green cards who aren’t much younger. Further, the H2A program, which guarantees foreign workers who are legally permitted to work, handcuffs employers and employees together, she said. If she doesn’t get along with a worker, she can’t send them away until they’ve completed at last three-quarters of the promised work contract.

Richard E. Stup, agricultural workforce specialist for the Cornell University Cooperative Extension, took the audience through an overview of how the right to unionize affects farmers.

The farm owner, for instance, must allow organizers access to the property if the workers live on the property. But he said they can restrict that access to non-working hours.

Employers can’t question workers about union organization activity, threaten them or make promises to discourage unionization, or engage in surveillance of organizing efforts, Stup said. They can, though, provide facts and examples, and offer their opinions.

If farms are considering installing cameras for security purposes, Viau suggested they not do it as soon as they hear about union organizing efforts among their workers.

In a panel discussion on union issues, Brad Goehring, a grape grower and farm labor contractor from California, said “I hear the fear in your voices,” but he offered some encouragement from California’s farm labor union experience. The state has only 33 farm labor contracts, he said, representing between 500 and 700 workers. But it has close to 1 million agricultural workers.

Small and medium producers probably won’t be targeted for organization, he predicted.

“It’s probably not as big a deal as you’re thinking, but you should be prepared,” Goehring said. Nevertheless, he insisted that unions in California use their funding to try to pass laws that harm farmers.

Linda Donahue, who works out of Rochester with the Cornell School of Industrial and Labor Relations, cautioned farmers against taking an adversarial stance on unionization. “If you expect to have a contentious relationship with your workers or the union, you probably will,” she said. She reminded them that a labor contract is an agreement between the employer and workers, not something imposed on the farmer by the laborers.

“Most workers want a few simple things,” Donahue said, including respect, the ability to make a decent living, freedom from arbitrary rules, recourse when they have been treated unfairly, and to work in a safe environment.

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Farmers told hiring foreign workers is a complicated process

After most of a day hearing about federal, state and municipal laws governing the hiring of foreign workers, Barbara Bauman of Webster felt she learned enough to start asking more questions of the appropriate agencies.

Barbara and Daniel Bauman attended the Becker Forum in Liverpool this week, a full-day forum on current agricultural topics held each year on the day before the start of the Empire State Producers Expo in Syracuse.  This year the forum focused on the federal H-2A program that allows farms to hire foreign workers for up to 10 months of the year to handle seasonal work. Anyone attending couldn’t help but come to understand that it’s a complicated process to gain and maintain the many required approvals governing foreign workers.

“I’m not sure it’s going to work for us,” Barbara Bauman said, but noted that the forum, sponsored by the NY State Horticultural Society, was helpful.

The Baumans had attended the forum hoping to find a solution for farm labor shortages they’ve been experiencing during harvest time.

“It’s not so much finding people, it’s finding people who are willing to work,” Daniel Bauman said.  At least until now, the farm has relied on local domestic workers for its labor supply.

Several of the presenters were other farmers experienced in hiring H-2A workers who said they had the same problem before turning to workers from other countries. Allison DeMarree of DeMarree Fruit Farms in Williamson, Wayne County, said without the H-2A program, “we’d have to sell the farm.”

DeMarree and others said when they advertise in local, regional and out-of-state newspapers for workers, they get little to no response from American-born workers. Sometimes people call about the ads but clearly don’t meet even the basic requirement of having worked on a farm for a minimum of three months. And few, if any, show up for an interview.

Experts in labor and agricultural law detailed the complicated process for the approximately 80 people attending, starting with housing. The H-2A program requires that employers provide adequate housing for foreign workers, but the farms have to meet county and town codes for building and occupancy. So farmers were advised to start talking with county health department representatives at least a year before building or renovating housing in order to make sure whatever was prepared met the applicable codes.

Renewing approval each year also takes substantial time and presenters warned farmers to file paperwork at the earliest date allowed rather than wait until the last allowable date. Everything should be completed and approved at least 30 days before the workers are needed or else the workers won’t be there at the critical time, experts said.

“You have to think about all the moving pieces of the agencies in order to get to where you need, which is workers on the ground,” said Melissa Buckley, a foreign labor specialist with the state Department of Labor. “H-2A could be kind of a year-round activity for the employer,” she said.

When starting the paperwork, Buckley said, “get a cup of coffee, get a snack, get a notepad because, frankly, it’s going to take a while.” She advised farmers to “make the time or hire an agent.”

Peter Russell of Russell Farms in Appleton, Niagara County, has made use of an agent for the last two years, but warned that farmers still need to exercise due diligence about the process and maintaining their housing so inspections go well.

“Nobody’s going to look after your operation better than you,” Russell said.

Despite the complexity of the laws on foreign workers, use of the H-2A program in New York has increased substantially in recent years. Buckley presented figures showing 427 employers in New York asked for foreign workers in 2016, which resulted in 6,667 foreign workers being placed. Those numbers represent an increase of 21 percent in requests and 23 percent in number of workers since 2014.

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