ALBANY — A state panel that oversees wage issues for farm workers could be just weeks away from deciding the decades-old question of whether these laborers should, for the first time in state history, be entitled to a 40-hour workweek.
It's a decision that many advocates believe is tied in with racial as well as economic equity, and comes in the wake of the New York Department of Agriculture and Markets' recent acknowledgement that farmers of color have “experienced both explicit and implicit forms of discrimination and racism.”
That statement came in a report released by the agency in August that also noted that about 2 percent of New York's 58,000 farm owners or managers are people of color, according to federal data.
The focus of the study was on farm producers, the people who own or manage New York’s 6.9 million acres across 33,000 farms to drive a $5.7 billion industry. The federal agency does not track the demographics of the people who work for those producers, although the report said 20 percent of their hired workers are migrants.
The USDA's survey found that as of 2017 there were 125 Native American producers, 139 Black producers and 606 Latino producers in New York.
It remains unclear how, if at all, the quietly released state report will factor into an upcoming decision on whether farm workers, like employees in other industries, should have a 40-hour workweek. But it is clear that farm industry groups believe it should not be a reason to change longstanding pay practices.
The state board is to meet by Dec. 15 and decide by the end of year whether to maintain the current 60-hour workweek, which went into effect in 2020 following decades of advocacy to establish an overtime threshold. Previously, farm workers had not been entitled to any overtime in state labor law.
Some proprietors of family farms say a 40-hour overtime threshold would make it harder to diversify the industry because it could reduce the number of employees they could hire or shut down their business altogether.
The state Department of Agriculture and Markets "is committed to creating a more equitable agricultural community, providing our (Black, Indigenous and People of Color) farmers with the right tools and resources needed to succeed in the industry,” agency spokesperson Jola Szubielski said in a statement. “The department also supports an equitable workforce, and is proud that New York state farm workers are among the highest-paid in the nation.”
The state agency did not comment on what it would like to see the wage board do, or whether it feels lowering the overtime threshold to 40 hours relates to equity.
Two advocacy groups that have been vocal on the overtime issue, Grow NY Farms and the New York Civil Liberties Union, are diametrically opposed on the main takeaways from last summer's report and whether its findings are relevant to the wage board's decision.
“These are separate issues, and efforts to conflate them are distracting from the fact that workers want the opportunity to work and earn more,” said Grow NY Farms, which is supported by the New York Farm Bureau. “We all want more diversity in the industry, but reducing the overtime threshold will close farms and make the barriers to entry even greater.”
NYCLU said the two issues are linked. The organization led an appellate court case that in 2019 granted farm workers the right to collective bargaining. The same year, the state passed the Farm Laborers Fair Practices Act, which established the 60-hour workweek with a right to a day of rest. The legislation also created the wage board to further evaluate the overtime threshold question.
“It is truly ironic that the state of New York would recognize the history of racism and discrimination in the farm industry while still protecting that legacy by excluding farm workers from a 40-hour overtime threshold,” NYCLU senior attorney Lisa Zucker said.
What’s the cost?
A study by Farm Credit East, which is closely associated with the Farm Bureau, found that the mixture of increasing minimum wage and lowering the overtime threshold to 40 hours “could impact the financial viability of many farms by significantly increasing costs, reducing net farm income and cash flow.”
“Critics will say that, ‘Why shouldn’t (farm laborers) be treated like any other worker in any other industry?’" said Crystal Grimaldi, a co-owner of Ideal Dairy in Hudson Falls. "In theory, I think that I agree with that — but the reality is we’re not like any other industry. We can’t change our operating hours so that we’re only here 9 to 5, five days a week. The cows don’t shut off."
The industry report estimates labor costs would increase for farms by about 17 percent; labor currently accounts for about 20 percent of costs, according to USDA data.
Farm Credit East says New York's dairy industry, which is the third-largest in the country, is particularly hamstrung because the USDA determines federal rates for dairy pricing. That means the businesses are unable to directly offset those higher labor costs by raising their prices.
“We just can’t afford that (pay increase), so then we’re going to make changes,” said Grimaldi, who recently invested in expanding her six-generation dairy business in New York despite temptations to leave the state. “Unfortunately, I think the people who want to work as many hours — it’ll come out of our pocket, but it’s really money they could’ve earned.”
John Hand of Hand Melon Farms in Greenwich said that his multigeneration family farm would likely go out of business under a 40-hour overtime threshold. He was worried about his workers, their families and the community that relies on their business.
Asunción Cruz Jimenez, a farm worker at Ideal Dairy, is on a visa from Mexico. He lives in provided housing, which is mandated by the visa.
He has preferred working there over where his brother had worked in South Dakota, Jimenez said through a translator, because the wages are higher in New York. He intends to work two or three years here until he earns a letter of recommendation, and then go back home.
If his earnings dropped, he said, he would likely leave. By working a lot, he gains experience, but also it keeps his mind from focusing on being away from home. “Depression would set in more,” Jimenez said.
His experience is not universal. though.
Central New York farm worker, Justiniano. He said he appreciates working fewer hours at the higher wages so that he can spend more time with his family.
ProvidedBefore the new overtime rules, central New York farm worker Justiniano said he used to work 65 to 70 hours per week, often without a day off. (Justiniano requested only his first name be used to avoid potential retribution from his employer.) He now works about 55 to 60 hours a week, with two days off. The owner of his farm hired more staff after the new rule went into effect, he said.
Justiniano has enjoyed being able to spend more time with his wife and young son, who is a student in the local school system and is learning English.
“On weekends I can be with them,” Justiniano said through a translator. “I can dedicate more time to them.”
He said he appreciates the political discourse around the overtime threshold because he feels the Spanish-speaking laborers are “overlooked.”
“Sometimes the owners think that because we came with a purpose to get a better life for our families, there are owners who take advantage and don’t value our work,” Justiniano said. “Sometimes with the Hispanic workers, they don’t know how to value our work. ... But there’s a lot of Americans who aren’t working 12 hours a day like we are.”
‘Until hell freezes over’
Eighty-four years ago, the initial debate over work hours was long and intense.
Some legislators said any proposed changes should be studied further for their economic impacts. Members should have more time to read the text. The policy, one member said, was nothing less than Congress “on the verge of leaping without knowing where it is going to land."
In the New Deal era, the fight to establish a federal minimum wage and a 40-hour workweek as part of the Fair Labor Standards Act turned for some lawmakers on the question of whether to include farm workers.
“May I say that the cow cannot be regulated by any law you may pass here,” Republican U.S. Rep Francis D. Culkin of Oswego said in Congress in 1937. “She gives down her milk at 6 o’clock in the morning. You can pass laws until hell freezes over and you cannot change that. … So I say, for God’s sake ... do not attempt to invade the God-given province of the cow by this legislation.”
A New York City congressman, Democrat William I. Sirovich, countered the upstate Republican as well as opposition from the National Grange and the American Farm Bureau. He said farmers should have the right to the same purchasing power with the same working hours as the industrial workers. Employers and the government, Sirovich added, should treat workers with "humane ethical standards, which consists in not commercializing and exploiting their fellow man."
President Franklin D. Roosevelt’s Fair Labor Standards Act was passed the next year, with support from Southern Democrats. It established a minimum wage and 40-hour workweek — but excluded farm workers.
That carve-out was seen as key to securing the support of Southern Democrats concerned that a minimum wage and overtime threshold would cripple the agricultural economy. Academic scholars have asserted the argument was tinged with racism, arguing white farm owners near the height of the Jim Crow era were taking advantage of Black workers.
In the 1980s, the federal government finally established a minimum wage for most farm workers but not an overtime threshold.
Where we are today?
Both sides in the debate over farm wages recognize the complexities of the question.
“Do we agree that there are some troubling economics about farming in New York state? Yes,” said Jessica Maxwell, executive director of Workers Center of Central New York, a Syracuse-based nonprofit focused on workplace and economic justice. “Do we think that should be solved on the back of the people who have the least amount of resources and are doing the hardest work, the workers? No. We think we should be looking in the other direction to solve those economic challenges in the industry.”
The Workers Center partnered with NYCLU on the 2019 court case that established the clear right for farm laborers to unionize.
Some farm owners said "exploitation" is the wrong way to characterize their work.
“For us to think of the thought that it’s exploitation — it’s an opportunity,” said Grimaldi, the Hudson Falls dairy farmer. “It’s people who want to have an opportunity to improve their position in life and meet their financial goals, and we’d like to just give them a blank slate to do so. But regulations like this are making it so that’s not the case.”
There's also a broader question of whether the racial disparities in farm ownership are a reflection of the workforce as well.
“It is clear that the need for a focused strategy to increase, sustain and diversify farming and land access across the country is more urgent now than ever,” state Department of Agriculture and Markets Commissioner Richard Ball said in the August report.
Grow NY Farms disagrees with NYCLU's contention that the overtime threshold links back to Jim Crow-era policy, or that the issues of diversity and equity are reasons to set a 40-hour threshold. Instead, they say the struggle for racial equity is a reason to avoid setting a new threshold.
“We have already seen workers leave the state at (the 60-hour threshold)," Grow NY Farms said. "More will do so at 40, going to other states without the progressive labor protections that we have in New York State."
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