Overtime pay for farm laborers to be phased in over next decade

Farm laborers will be entitled to overtime pay for working more than 40 hours a week in 2032, following an order signed by the state labor commissioner. 

Labor Commissioner Roberta Reardon accepted the recommendation of the Farm Laborers Wage Board to lower the current 60-hour overtime threshold on Sept. 30, following nearly two years of deliberation and public feedback. The changes will be phased in over the next decade, dropping four hours every two years with the first adjustment lowering the threshold to 56 hours in 2024. 

The Farm Laborers Wage Board included its recommendation in a final report issued on Sept. 6, after initially voting 2-1 in favor of reducing the threshold on Jan. 28. 

According to the final report issued by the wage board, agriculture workers “tend to earn significantly lower wages than the average worker in all private industries in New York State,” earning $39,137 on average as compared to $84,739 across all industries. Wages are even lower in the crop production sector, which makes up about half the state agriculture industry, at $36,850.

A little more than 40% of farm laborers also tend to work more than 40 hours a week, as compared to around 25% in other industries. A little more than 10% work more than 60 hours a week. The report highlights that other industries with operational needs influencing overtime hours, such as retail during the holidays and snow plowing, are not exempt from overtime pay after 40 hours.

Opponents to reducing the overtime threshold have argued that labor is already a large business expense and farmers operate on slim margins, according to the report. Farmers and agricultural industry groups have also cited industry conditions such as weather dependency and competition with farms in other states without similar wage regulations as reasons against lowering the threshold. Some workers also testified a desire to work longer hours.

Advocacy groups contended, however, that a 40-hour work week is standard in all other industries and the farmworker exception “is an outdated relic rooted in racism,” according to the report. They also highlighted the vulnerability of the workforce, due to the strenuous physical labor required, minimal labor protections and long hours for low pay. Other seasonal workforces that are also impacted by the weather, such as tourism and construction, pay overtime, proponents pointed out. 

The report notes that fewer farm workers participated in the hearings than farm owners, something advocates attributed to conflicting work schedules, fear of retaliation and “the vulnerability of a low-wage, often undocumented workforce.” A significant amount of testimony was read by advocates on behalf of workers who wished anonymity or were unavailable.

“We heard directly from workers who gave first-hand accounts of the physical toll they endure. Physicians and others who deal directly with these workers gave testimony about the physically taxing nature of farm work and the impact it has on the human body…” the wage board wrote in the report.

Three new tax credits have been implemented to alleviate the economic burden on farmers adjusting to the overtime change: 

• The Investment Tax Credit, meant to encourage the potential automation of farm production, was increased from 4% to 20%. 

• The Farm Workforce Retention Tax Credit was increased to $1,200 “to provide near-term relief for employers.”

• A new refundable tax credit was established for overtime hours paid by farm employers at the level established by the wage board up to 60 hours. 

New York Farm Bureau President David Fisher, who represents the lone vote on the Farm Wage Board cast against lowering the threshold, has indicated he does not support the final report as written.

“This is a difficult day for all those who care about New York being able to feed itself. Commissioner Reardon’s decision to lower the farm labor overtime threshold will make it even tougher to farm in this state and will be a financial blow to the workers we all support,” he said in a Sept. 30 statement. “Moving forward, 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. All of this was highlighted in the testimony and data that the wage board report and the commissioner simply ignored.”

The Grow NY Farms coalition similarly condemned the decision. The agricultural organization is supported by several other farm groups as well as local businesses across the state, including Wickham’s Fruit Farm in Cutchogue and Garden of Eve in Aquebogue.

“New York’s agriculture community is deeply disappointed in Commissioner Reardon’s ill-informed decision to lower the overtime threshold for our family farms. This decision threatens the security of our food supply, the retention of our skilled farmworkers, and the future of New York’s farms. If Governor Hochul has the ability to step in and stop this damaging decision, she must do so immediately,” Grow NY Farms said in a statement. 

The New York Civil Liberties Union has praised the DOL’s decision to lower the overtime threshold for farmworkers.

“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. 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,” executive director Donna Lieberman said in a Sept. 30 statement.

The state Department of Labor is accepting public comment during the rulemaking process. More information will be posted as available here.