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Wednesday, February 16, 2022

Labor Commissioner Makes the Final Decision: 

Overtime Farm Threshold Decision could Take Months

The impassioned shouts of farmers opposed to the Wage Board’s recent decision to lower the overtime threshold for farm workers rang from the Capitol’s Million Dollar Staircase on Tuesday in their hopes the echoes would reach Gov. Kathy Hochul and members of her cabinet meeting on the second floor.

It will likely be springtime before Labor Department Commissioner Roberta Reardon makes the final decision to accept or reject the Farm Workers Wage Board’s Jan. 31 vote to reduce the overtime threshold for farm workers to 40 hours over the next decade, reducing the threshold from 60 by four hours every two years.

“Commissioner Reardon has not yet received the Farm Laborers Wage Board’s official report,” Labor Department officials said in a statement Tuesday. “When she does, the commissioner will have 45 days to review the recommendations and announce her decision on the matter.”

In the Capitol on Tuesday, agricultural advocates said the commissioner could request an extension to review the decision for an additional 45 days — or at least three months after the board submits its official report to the department.

Farmers estimate a 42% cost increase with the overtime changes — a price tag they say will bankrupt many small and mid-sized family farms across New York, forcing them to shutter after two years weathering pandemic hardships.

“The fate of farming and agriculture in New York state now rests with only two people: Labor Commissioner Roberta Reardon and Gov. Kathy Hochul,” said Assemblyman Chris Tague, R-Schoharie, a former dairy farmer who has been a leader in the fight against the threshold reduction.

“This isn’t an inevitable tragedy that we need to accept, though, because Gov. Hochul and Commissioner Reardon still have the power to put an end to this madness,” continued Tague, a ranking member of the Agriculture Committee. “They had an opportunity to save farming as we know it today. If we have no farms. We have no food. ... Commissioner Reardon and Gov. Hochul, I implore you: Don’t bite the hand that feeds us. Stay at 60.”

About 73% of the farmers, farm owners, migrant workers and lawmakers who testified to the Wage Board on Jan. 4, 18 and 20, spoke in opposition to the threshold reduction, representing small or mid-sized family farms.

Labor unions and other organizations have advocated for the 40-hour threshold to give migrant farm workers a more fair wage and protections comparable to other industries. U.S. farm workers earned $14.62 per hour on average in 2020, which is just 60% — or three-fifths — of what production and nonsupervisory nonfarm workers earned at $24.67, according to the Economic Policy Institute.

“I believe those who support lowering the overtime threshold have done so with good intentions and out of concern for all who work on our farms, but I cannot stress enough that lowering this overtime threshold will only hurt the very people the measures intended to help,” said Assemblyman Steve Hawley, R-Batavia, a former third-generation farmer, represents farm country throughout the GLOW region.

Hawley, a member of Genesee County’s Farm Bureau, voiced concerns reducing the threshold will lead to increased food prices and a reduced diversity of available New York-grown crops and products.

“The plain truth of the matter is that farms cannot operate on less than a 60-hour workweek, and the failure to recognize that fact will lead to the loss of our beloved family farms,” he said.

Hochul and the Labor Department commissioner continue to weigh the decision, the governor told reporters after Tuesday’s cabinet meeting concluded, adding she continues to solicit opinions from all sides of the issue.

“We still have time to have that under consideration,” Hochul said. “We are looking at it closely, but we are also looking at a way if this is going to be the case, it would be as a long rollout, you know, plenty of time for people to adapt to it.”

Commissioner Reardon was at the table with a microphone and ability to speak, but did not provide input about the upcoming decision.

The Labor Department responded to subsequent questions with an identical statement: “We have not yet received the Farm Laborers Wage Board’s official report.”

Hochul’s executive budget proposes doubling the farm workforce retention tax credit to $1,200 to help offset rising labor costs from ongoing minimum wage increases — a proposal that surprised agricultural advocates, they said Tuesday, adding it was something they have not requested.

“The governor is trying to have it both ways,” said Jeff Williams, New York State Farm Bureau’s director of public policy. “It’s critical that if this goes forward and we go to 40, farmers need the opportunity to get their overtime offset. It’s not that they won’t pay, they simply can’t pay.”

Tague said the tax incentive “is a slap in the face” to farmers.

“If I was still a dairy farmer and in business and it was offered to me, I’d say ‘No, thank you,” he said. Anyone may file objections to the Wage Board’s vote for a 15-day period after the board files its report with the Labor Department.

The commissioner will issue a report with details about her intended decision, which will be open for public comment before made final. Hochul recently met with New York Farm Bureau officials and other representatives in the state’s agriculture community to discuss their fiscal needs and legislative priorities.

Hochul on Tuesday urged the federal government to make more work visas available to increase the number of migrant farm workers throughout the year to benefit vegetable and dairy farmers alike.

“Agriculture — this is an essential industry for us,” the governor said, adding urban food banks rely on the state’s strong agricultural practices. “We need to keep that lifeline open as well. ... We want to get it right for them as well and make sure that we take care of our workers, gives them what they need, but also gives the farmers perhaps tax relief to help ameliorate the impacts.

“It is not final, but we’re getting close.”

If accepted, the new rate for farm laborers will begin Jan. 1, 2024 with a threshold of 56 hours, down to 52 hours Jan. 1, 2026; reduced to 48 hours on Jan. 1, 2028; 44 hours on Jan. 1, 2030, and the 40-hour threshold in effect Jan. 1, 2032.

The state’s 60-hour threshold for farm workers was established down from 80 hours under the 2019 Farm Laborers Fair Labor Practices Act and took effect in 2020.

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