Wage board: Lower OT threshold

Enterprise file photo — Michael Koff
Assemblyman Chris Tague spoke out in August, along with other Republican politicians, against lowering the overtime threshold for farm workers.

The decision on overtime pay for farm workers is now in the hands of the state’s labor commissioner, Roberta Reardon.

In an online meeting that lasted less than half-an-hour Tuesday evening, the three-member Farm Laborer Wage Board, in a split vote, recommended the current threshold of 60 hours for overtime pay be reduced, over the course of a decade, to 40 hours.

The vote was predictable as was the immediate response.

The board’s chairwoman, Brenda McDuffie, former president of the Buffalo Urban League, and member Denis Hughes, former president of the New York State AFL-CIO voted, without comment, in favor of the recommendation while David Fisher, president of the New York Farm Bureau, was against the measure and read a lengthy statement expressing his objections to the report.

Within an hour of the vote, the New York Civil Liberties Union issued a statement saying, “Farmworkers have waited over 80 years for an end to the racist exclusion that has stolen countless hours of overtime pay … With Governor Hochul’s more than dollar-for-dollar refundable tax credit, there is no reason that the overtime threshold cannot be immediately lowered to 40 hours, eradicating this racist Jim Crow policy once and for all.”

At the same time, Republican legislators including Senate Republican Leader Rob Ortt and local Assemblyman Chris Tague issued statements opposed to the recommendation. Ortt called the decision “a monumental disaster that will sadly be the final straw from many of our struggling family farms.”

Albany County, according to the latest United States Department of Agriculture Census, from 2017, has 440 farms; 94 percent are family farms, and 26 percent hire farm labor.

Those are similar to statewide numbers: Of the 33,438 farms in New York State, 96 percent are family farms; 27 percent hire farm labor.

Tague, who hosted a rally with other prominent Republicans in August at a New Scotland farm, said, “The decision will hurt our farms, our farm workers, and our rural economies and jeopardizes the continued existence of farming as we know it here in New York state …. Our only hope at this point is if Labor Commissioner Reardon decies to take a stand for New York’s farms and reject the board’s recommendation.”

Reardon has 45 days to decide.

The wage board was created by the Farm Laborers Fair Labor Practices Act of 2019, which for the first time made farm workers eligible to join a union, take off one day a week, and earn overtime at one-and-a-half times their regular rate for any hours worked over 60 in a week.

Having completed its legislated task on Tuesday, the wage board is no more.

The new law had tasked the board with making a recommendation about the overtime threshold for which the board held one in-person hearing in 2020, before the pandemic shutdown, and then eight virtual hearings between 2020 and 2022. 

On Jan. 28, the board, with the same 2 to 1 vote, passed three resolutions to recommend:

— Reducing the overtime threshold from 60 to 40 hours per week;

— Phasing in the reduction over 10 years with reductions of our hours on a biannual basis; and

— Scheduling the reductions this way — on Jan. 1, 2024, the threshold is set at 56 hours; on Jan. 1, 20226, the threshold is set at 52 hours; on Jan. 1, 2028, the threshold is set at 48 hours; on Jan. 1, 2030, the threshold is set at 44 hours; and on Jan. 1, 2032, the threshold is set at 40 hours.

McDuffie went over these recommendations at Tuesday’s meeting and explained that the state’s labor department has to publish a notice in at least 10 general-circulation newspapers in the state and that any objections to the report or its recommendations must be sent to Reardon within 15 days after publication.

If Reardon adopts the regulations, the labor department will undergo a rule-making process during which there will be a 60-day public-comment period, McDuffie said. She also said the report will be sent to Governor Kathy Hochul and the State Legislature as well as to Reardon.


Fisher’s objections

Fisher, in starting his long list of objections, said the process had been “awkward” since the three board members couldn’t meet  in person to “have meaningful discussion or visit a farm.”

“I knew cards were stacked against the position of my organization,” he said of the Farm Bureau, “and what agriculture truly believes is best for farms, farm workers, and the food supply.”

Fisher further asserted that the report “does not reflect the data or research and scope of the full testimony.”

He asserted that the report reaches some conclusions based on opinion rather than fact; he gave as an example the claim that a large number of farm workers are paid off the books. Fisher said the claim isn’t true and, if it were, it would be a failure of the labor department to enforce its own regulations.

Fisher asserted further that the report, in delineating low wages for farm workers, does not take into account that seasonal workers earn wages for just four to eight months and that workers get a “multitude of unique benefits” on top of wages like free housing, utilities, and food from the farm.

He went on about the report, “It barely touches on the testimony of how this will make farms less competitive and how labor shortages are already a challenge.”

Fisher continued, “What may be most disheartening is the references of historically racist policies to justify lowering the threshold. The report cited no evidence or testimony of racial discrimination on farms ….”

Fisher said that, three years ago, “all sides” supported the compromise that led to adopting the 60-hour threshold.

“Finally,” he said, “the report makes the conclusion that a significant number of farm workers did not testify because of fear of retaliation or because they’re low wage or often undocumented.”

Most of the hearings, he said, were scheduled when seasonal workers were out of the country.



Fisher asked that his comments be added as an addendum to the report.

McDuffie first responded that the meeting was being recorded and all comments, including Fisher’s, would be part of the public record.

After the vote, McDuffie said she was grateful to the other two board members and to the teams from the labor department and from Agriculture and Markets.

“This was a very difficult and challenging process that was impacted by COVID,” McDuffie said, “but I believe that we heard from everyone who wanted to give testimony not only during our virtual meetings, but in person and in writing.”

She also thanked “every person who participated in our public meetings, hearings, submitted testimony, engaged in any way throughout the process.”

Fisher circled back to his request, making a motion that his comments “be added as a minority opinion at the end of the report.”

McDuffie seconded the motion, saying, “I have no objection to that.” 

In the end, Hughes, too, agreed to have Fisher’s comment added to the end of the report.

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