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.

[email protected]/(585) 363-7275


Cornell study finds attitudes toward undocumented farmworkers have improved

Attitudes toward undocumented farmworkers in New York have improved over the course of a decade, according to a survey and study conducted by the Community and Research Development Institute (CaRDI) at Cornell University.

The researchers published the findings in a recent issue of CaRDI’s “Research & Policy Brief Series,” in which they compared attitudes in 2008 and 2017.

While in both years a majority of respondents considered the impact of undocumented farmworkers a positive one, in 2017 the positive answers jumped 19 percentage points to 75 percent. Negative perceptions and mixed perceptions both decreased.

In their introduction, the researchers, led by Mary Jo Dudley, a sociology professor and director of the Cornell Farmworker Program, suggested the study’s results may be important because “Public opinion on immigration-related issues can influence public policy.”

Slightly more than half of respondents, in giving answers to the survey’s open-ended questions,  acknowledged that undocumented workers play a significant role in the economy, and some went so far as to note that they help keep food prices low.

The article cited a national study that predicted a 50 percent decrease in immigrant workers would force the closure of more than 3,500 dairy farms and cause milk prices to jump 30 percent. If all such workers were removed, milk prices would jump by 90 percent and more than 24,000 jobs would be lost, including those of citizens who rely on the farm economy for their livelihoods.

About half the people participating in the study came from upstate areas, while half came from downstate. Geography didn’t seem to make much difference in the answers, the study said, but political affiliations, religious affiliations and education levels did.

Democrats were overwhelmingly positive about undocumented farmworkers while a little less than half of Republicans feel positively; the change over a decade was minimal among Republicans. College-educated people were more positive than those who didn’t have a college education. Non-Christians were more positive toward undocumented workers than were Christians.

The report concluded, “The positive views held by a majority of New Yorkers of undocumented farmworkers’ impacts may provide support for … policy changes that would allow undocumented farmworkers to more fully participate and contribute to community life in New York State.” Indeed, since the report was issued, state laws were passed allowing more labor protections for all farmworkers and driver’s licenses for undocumented workers.

[email protected]/(585) 363-7275

Labor-practices bill for farmworkers worries farmers

For years, advocates for farmworkers have lobbied to end exemptions to labor laws that exist on farms but with little success.

Since Democrats took control of the state Senate last fall, however, a new effort concerning farm interests introduced by Democratic legislators from Queens is gaining traction and bringing new hope to farmworker advocates.

After a series of hearings and informal meetings on the Farmworkers Fair Labor Practices Act in April and May, another roundtable is scheduled for next week in Albany in anticipation of a vote.

Largely Republican Upstate legislators from rural districts stand against the bill, saying it would be devastating for farmers who are already hard-pressed to make a living in these times. Urban Democrats, who have traditionally stood in favor of labor protections, are supporting the bill.

“I’ve taken a very strong position in opposition to this bill because it hurts everybody,” said Sen. Michael Ranzenhofer, a Republican whose district stretches from eastern Buffalo to western Rochester, including an agricultural swath through Genesee County. “It doesn’t pick winners or losers, farmers over farmworkers. It just hurts everybody who is involved in farming.”

While the two sides can argue about whether the bill’s requirements on unemployment insurance, workers’ compensation and a day of rest are needed given other state laws already in effect, they are most deeply divided on the issue of overtime.

The bill would require overtime after eight hours of work in a single day and after 40 hours in a week. Currently farm employers do not have to pay overtime to workers due to exemptions granted more than 70 years ago.

Opponents say the bill would require overtime in a way that no other job sector does, as overtime generally comes after a certain number of hours in a week are reached, not after a daily total.

Moreover, farmers and their supporter say they cannot afford to pay overtime, and if forced to do so will simply hire more workers to cover the extra hours at straight time to avoid having to pay time-and-a-half to their regular workers. A study on the subject by farm financer Farm Credit East estimated the total cost to New York’s farms would be $299 million annually.

Opponents argue that overtime requirements ultimately would hurt workers, many of whom are migrants who work as many hours as they can so they can send money back home to Mexico or other countries of origin.

Librada Paz, a former farmworker who lives in Brockport and is a nationally recognized advocate for farmworkers, said farmworkers who speak against the bill are doing so because their employers have said they’ll cut hours if they have to pay more after 40 hours.

“I’m kind of mad when farmers say ‘We’re not going to be able to do it,’ ” she said. Farms are businesses, she noted.  “Why don’t you want to have a business mentality? Workers want more hours and definitely workers want more pay.”

But farmers have never had to adjust before to the idea of paying overtime. Paz said she’s confident that they’ll find a way to follow the law if it passes.

Others don’t share her confidence that farmers will be able to meet that larger payroll.

Steve Ammerman, manager of public affairs and associate director of the New York Farm Bureau, said, “It’s not that they don’t want to pay employees more, it’s that economic conditions are tying their hands.”

“The agricultural economy has been underwater for the last four years,” added Shelley Stein, an employee and part of the family that owns the Stein dairy farm in LeRoy. If the law passes as written, she said, the farm would see a 23 percent increase in labor costs, adding $200,000 a year to the $550,000 it pays now.

Farmers can’t just raise prices to cover higher wages, she said, because they aren’t in control of the prices on the products – milk especially – they produce. A federal market order sets the price of milk paid to farmers.

“They don’t know what they’re going to get for the milk until a month after the milk leaves the farms” said Ammerman, “If farmers aren’t able to recoup labor costs, they’re not going to be able to stay in business.”

Some state estimates suggest 20 percent of New York’s dairy farmers have gone out of business in recent years because of economic pressures, including lower prices they’re paid for milk and increases in the minimum wage.

Further, wages are already higher in New York for farm laborers, farm experts said. Ammerman said the average wage farmworkers are paid is about $14 an hour, several dollars over minimum wage in New York. And Stein noted that the minimum wage of $11.10 is also several dollars above what neighboring states have set as the minimum, putting New York farmers at a disadvantage. Pennsylvania’s minimum is so low, farmers could pay a minimum-wage worker overtime and still not pay as much as a New York employer would pay in straight time to a minimum-wage earner, she said.

Stein noted that workers on her farm, ranging from high schoolers who want to put in a single day of work on the weekend to full-time laborers and mechanics to college-educated herd managers, range from minimum wage to $22 an hour.

“There is such a tight labor market right now that as an employer you really do work with your staff to afford them what they are asking for. That’s part of a negotiation process,” she said. She added that such negotiations already happening on farms negate the need for a collective bargaining provision in the bill.

Paz said when farmers say they’re already taking care of their workers, she wonders why they aren’t then willing to put those practices into law.

Several bill opponents, for instance, say a day of rest is already standard on most farms. But Paz said she knows of dairy farmworkers who work day in and out on a schedule that requires them to work four hours, go off duty for three, go back on duty for four and so on around the clock. That worker never gets the chance to fully rest from work, she said.

Ranzenhofer said, “I acknowledge that there could be isolated instances where someone has not been treated properly,” but he added that in 11 years in the Senate, during which he has visited numerous farms, he has never seen what he considered to be abusive treatment of farmworkers.

“Well over 99.9 percent of farmers treat people with dignity and fairness,” Ranzenhofer said.

Central and Western New York farmers and their advocates have been unhappy with the bill’s process as well as its content because while three hearings were held outside of Albany, the closest to this area was more than 120 miles away.

“This is really the breadbasket for New York State in terms of agriculture,” Ranzenhofer said, noting his desire to have a hearing in his district or the Finger Lakes.

As a result of complaints, a roundtable discussion with farm interests did eventually happen in Batavia. Ranzenhofer also worked with Senate colleague Jessica Ramos, the bill’s sponsor in the Senate, to have another meeting in Batavia with farmers and farmworkers. Ramos is a Democratic state senator representing parts of New York City. She met with a dozen farmers and more than 300 farmworkers.

Ramos, who also chairs the Senate’s Labor Committee, did not return a call for comment on the issue, and Ranzenhofer said he still doesn’t know what she will end up doing with the bill. But he believes she came away with a more accurate view of how farmworkers are treated today and the economic realities of agriculture.

Meanwhile, talks of compromise on the bill are possible. Stein even suggested she’d be OK on an overtime provision for farms if it started at 65 hours, reflecting a workweek more normal in agriculture.

If compromises happen, they could happen soon.

“There are indications it could move out of committee next week,” Ammerman said on Tuesday. The Farm Bureau will continue to talk with sponsors of the bill and key members of the legislature about making changes, he said. “We don’t know what that will look like or what the language will be,” he said.

[email protected]/(585) 363-7275

Farmworkers’ rights topic of town hall on Sunday

 A town hall event to rally support for farmworkers’ rights in New York State is scheduled for Sunday afternoon in downtown Rochester.

The gathering, sponsored by the Justice for Farmworkers Legislative Campaign and Rural Migrant Ministries Inc., is urging passage of the Farmworker Fair Labor Practices Act to extend basic worker rights to farmworkers in New York. Since the New Deal of the 1930s ushered in worker protections, the groups say, farmworkers have been left out of entitlements other workers receive, such as a guaranteed day of rest, overtime pay, and the right to unionize.

Sunday’s event, from 2 to 4 p.m. at the First Universalist Church, 150 S. Clinton Ave., will feature a panel of speakers, including a farmworker, representatives of local churches, college educators and advocates for migrant workers. A theatrical performance by Justice Organization for Youth is also on the program.

For more information, contact Jose Chapa, coordinator of the campaign, at (845) 309-8424, or at [email protected]. The event is free and open to the public.

[email protected]/(585) 363-7275