New farm laborer rules finalized

Overtime thresholds to be phased in, concluding contentious planning period

ALBANY — State officials recently finalized the process for farm laborers to be entitled to be paid overtime for work over 40 hours per week, which is to be phased in over the next decade and buoyed by a state subsidy to farm owners.

The adoption of the regulations to lower the “overtime threshold” for farm workers formally concludes a contentious three years of planning that has often pitted organized labor and immigrant advocates against the New York State Farm Bureau and members of the Republican Party, alongside some rural Democrats.

The farm bureau and Republicans have long contended the change in the rules could cause a fatal blow to farmers whose businesses are on the margins. The warnings have included that it could result in less farm-fresh food for people on public assistance, especially those in New York City, and could lead to security issues by making the state more reliant on foreign nations to feed New Yorkers.

“These new regulations ensure equity for farm workers, who are the very backbone of our agriculture sector,” state Department of Labor Commissioner Roberta Reardon said in a statement. “By implementing a gradual transition, we are giving farmers time to make the appropriate adjustments. These new regulations advance New York State’s continued commitment to workers while protecting our farms.”

Starting next year, the number of hours a farm laborer can work before they qualify for overtime will begin to shift. In 2024, it will be 56 hours. Every year, the “threshold” for earning overtime is to decrease by four hours per week, until it reaches 40 hours in 2032.

Gov. Kathy Hochul has pledged a tax credit that farmers can receive twice a year that is intended to cover the difference in costs in labor between the current overtime threshold and 60 hours. For example, if the labor cost to a farm owner would have been $10,000 had the overtime threshold been 60 hours per week instead of 56 hours, they could get reimbursed for that difference. Critics of the new laws, despite lobbying for the tax credit, have offered mixed views on their support for the government relief.

The Department of Labor’s announcement on the changes to the overtime threshold for farm laborers led to a brigade of Republican opposition.

“The push to lower the threshold to 40 hours per week, despite concerns raised by farmers and farm workers, is exactly what this labor board was planning all along,” Senate Minority Leader Rob Ortt said in a statement. “Their pledges to work with all parties involved in this matter were disingenuous, and today, they displayed that they had zero interest in working together.”

U.S. Rep. Elise Stefanik, House Republican Conference Chair, called it an “out-of-touch decision” by “Albany Democrats” who have “ignored the concerns of farmers.” The North Country Republican asserted it “jeopardizes the future of New York’s agriculture industry” and would put “thousands of farmer laborers out of work.”

The regulations the department adopted were identical to those they presented in October.

“No commenters made technical suggestions to the proposed rule text beyond suggesting broadly that the department maintain the 60-hour threshold or create exceptions to the rule,” the Department of Labor said in its adoption of the new rules.

The Farm Bureau confirmed it did not propose technical changes, but instead passed along the comments of its president, David Fisher, who was the lone member of the three-person commission opposed to the changes. “I knew cards were stacked against the position of my organization,” Fisher said after the commission voted in September.

The bureau did not seek exceptions for specific farms, such as those of a certain size. Dairy farmers, the bureau has noted, are extremely vulnerable to the change in labor laws given their year-round work.

Few, if any, state Democrats released statements celebrating the adoption of the rules that they helped to usher in when they passed a host of changes in 2019 intended to benefit farm workers. The legislative changes called for creating a threshold for the number of hours a farm laborer could work before qualifying for overtime, 60 hours, and then for a commission to study whether it should be lower.

The commission would end up being delayed by the COVID-19 pandemic, which created challenges in evaluating the economic and social results of the new 60-hour cap before workers became eligible for overtime.

When the commission did come back to draft up new regulations, it received substantial, organized opposition to changing the laws from the agricultural industry. A refrain they would often hear was that farming is not a “9-to-5” business and therefore should remain exempt from the overtime labor laws that apply to all other industries.

The argument mirrored a time when the rules were first adopted, as President Franklin D. Roosevelt was seeking to pass labor protections in his New Deal. Farm laborers and housekeepers, as a part of a political compromise with Southern Democrats, would be excluded from both the established standards for an overtime threshold, 40 hours per week, and a minimum wage.