Wage Board recommends lower overtime threshold for farmworkers

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(AP Photo/Rich Pedroncelli)

Farm workers in New York should earn overtime pay after 40 hours worked in a week, as opposed to the current 60-hour threshold, a state wage board recommended on Tuesday.

Gov. Kathy Hochul and Roberta Reardon, commissioner of the state Department of Labor, will now have 45 days to either accept or reject that recommendation.

“We believe this decision respects the rights of farm laborers while taking into account the needs of farmers,” said Brenda McDuffie, who chairs the three-member board.

McDuffie, a former president of the Buffalo Urban League, voted to approve the report, as did Denis Hughes, a former president of the New York State AFL-CIO.

David Fisher, the third member of the board and the current president of the New York Farm Bureau, was the sole vote against the recommendation. He said a report accompanying the board’s recommendation didn’t reflect the comments they received from the public.

“I knew the cards were stacked against the position of my organization,” Fisher said. “In the end, I believe the report, which is written by the Department of Labor, does not reflect the data, research, and scope of the testimony provided.”

The wage board had hosted four public hearings about the issue at the beginning of this year, after an initial set of hearings the year before. Those hearings, all held virtually, were heavily attended by opponents of the lower overtime threshold.

The change, if approved, would be phased in over the next decade. Starting in 2024, the overtime threshold would be lowered to 56 hours each week. It would then be reduced by four hours every two years until it reaches 40 hours per week in 2032, the report said.

The issue — while largely policy-minded — has boiled over into the state’s election cycle in recent months, with Republicans siding against the lower overtime threshold and labeling the potential change as a result of Democrat-minded policies.

Democrats, meanwhile, have been mixed on the issue. Gov. Kathy Hochul hasn’t taken a public position on lowering the overtime threshold, saying she wouldn’t make any decisions until the recommendation was approved by the wage board.

“We are looking at it closely,” Hochul said in February. “We want to get it right for them as well, and make sure we take care of our workers, give them what they need, but give the farmers, perhaps tax relief, to ameliorate the impacts.”

Her lieutenant governor, Antonio Delgado, has taken a different position. Before he was selected as Hochul’s second-in-command, Delgado was a member of Congress, where he urged a “better solution” than what was recommended Tuesday.

Hochul has tried to reach a compromise, touting a tax credit in recent months that was approved in this year’s state budget. Her administration has said the credit will cover new overtime costs for farmers, dollar-for-dollar.

But many farmers, and industry advocates, have said the nature of their business is too unpredictable to be covered through a tax credit. Farmers would have to cover those costs upfront, and essentially wait to be reimbursed, they’ve said.

They’ve also predicted other consequences of a lower overtime threshold that they claim will disrupt the state’s agriculture industry. Aside from not being able to afford higher wages for workers, farmers predict a changed labor pool if a lower overtime threshold is approved.

That’s because, farmers say, they would have to cap workers at 40 hours each week to avoid new overtime costs. Farmers are concerned that will drive workers to other states, where they may be offered more hours.

“They want as much work as they can get,” said Assm. Chris Tague, the highest-ranking Republican on the Assembly Agriculture Committee. “If our farms can no longer offer those opportunities to our farm workers, they will go where the work is in other states.”

Supporters of a lower overtime threshold see it as a human rights issue. No other industry in New York has an overtime threshold higher than 40 hours each week. Holding farm workers to a different standard isn’t fair or equitable, they’ve argued.

It’s also really difficult work that can have more of a physical impact on workers over time than less strenuous jobs, supporters have argued. Not allowing overtime pay until 60 hours each week doesn’t match what goes into that work, they’ve said.

Civil rights groups celebrated the vote on Tuesday to advance the wage board’s report, and urged the Hochul administration to approve it.

“Farmworkers have waited over 80 years for an end to the racist exclusion that has stolen countless hours of overtime pay,” said Lisa Zucker, senior attorney for legislative affairs with the New York Civil Liberties Union.

“Governor Hochul and Commissioner Reardon must prevent another generation of workers from suffering by unequivocally accepting the Wage Board’s recommendation.”

A final decision on the overtime threshold will be due in late October.