Farm Worker Fair Labor Practice Act -Part Two

One year ago we all were trying to project what might happen in Albany with the new party balance. It really came as no surprise that we would be faced with a huge effort to alter the farm worker rules in our State. After months of the most united effort by NYS agriculture the Governor recently passed the Farm Worker Fair Labor Practice Act. It was hoped that if and when such an act would be passed we could each make long term plans based upon the act. This is not the case. The ink is not dry from the signature by the Governor and there are rumblings by the Senate and Assembly that they want more.

In August I currently know of two meetings to be held by agriculture to discuss first the current Act and second what we need to do to be prepared by the new demands. Unfortunately in my opinion this act has opened up a new energy by those who do not wish to understand agriculture to do even more. The newly created farm worker review board is of course one concern. The second is that by gaining passage of this act those in the legislature have gained new energy to push for more. We had hoped we would have time to absorb the new Act.

Paul Baker,
Executive Director
NYSHS

Questions are coming in faster than answers. Every farm now has to have in place a procedure to deal with when and if their employees wish to unionize.  What impact will it have on every farm in NYS if a farm is unionized and that farm is forced to meet new rules from labor? Will this then not set a precedent to be pushed upon all farms?  We need to really have frequent and open discussions with our help as to if they are approached by labor organizers how to respond. No doubt the picture that will be presented will be void of many of the realities of unionization.

In short, farms are very much in jeopardy moving forward. I can only hope that we can maintain our united collective voice in dealing with this new round of challenges to be flowing from Albany. I must admit I personally felt very defeated when I saw the details in the new Act. The fact is we will need to maintain our voice now more than ever. Not only are the roots of our crops here but so are those of our farms and families.  I personally understand if you have a feeling of frustration. I suggest you lick your wounds and prepare to meet the next round. To lie down now is to virtually turn the keys to your farm and the farms of the next generations over. I have to ask myself what would my ancestors have done? I know for a fact my parents would be sitting fire!

Pardon Me If I Do Not Say “Thank You”

I sit here awaiting the final version from the 2019 legislature on the Farm Workers Act. I think the weather outside my window mirrors my mood today. It is raining and the last thing any of us need today is more rain! It is not official but every indication is that we will see this Bill passed before they all return to their URBAN homes. We will be left once again to try to reinvent our operations if we wish to continue farming inside the borders of New York State. We have tried for years to educate the policy wizards about all that we are doing on our farms to enhance human resources. In most cases it far out distances most jobs in the non -agriculture world.

We will most likely see, beginning in 2020, overtime after 60 hours per week. Here I suppose I am expected to pause to say “thank you” because they really wanted us to be after 40 hours per week and 10 hours per day. After hundreds of hours patiently trying to educate the realities of this upon the Non-Agriculture economy we have pushed the beginning number to 60 hours.

Second, new positive is that the State will discontinue taxing H2A employers for unemployment insurance. This does zero for the largest sector of the New York State Agriculture dairy, as they are not legally allowed to be in the H2A program. The tax is unique to New York State as all other States do not levy it as they know there is zero opportunity for any worker to ever qualify. The Federal policy

Paul Baker,
Executive Director
NYSHS

does not charge this either. So in essence they have stopped charging us for a tax that I felt was illegal. Once again I should pause to say “thank you.”

Yes we will see the opportunity for farm employees to form a union if they so desire. There are yet miles of discussion needed here before we will truly understand the workings of this part of the Bill. We have stressed that we would be willing to see if we could find some mutual ground here. Our number one fear is a work stoppage where farms would be left with no employees to harvest perishable annual crops such as apples or dairy herds left with no one to milk them.

The final concern I will share with you is the new Work Labor Board that will be created out of this Bill. It will meet as early as March 1, 2020 to determine if the Farm Worker Bill is being fare to the employees it is designed to protect. They have the sole power to make changes in the Bill. They do not need to have legislative approval. So in essence if this small Board decides that on March 1, 2020 that 60 hours is not correct, they have the power to issue a new number. In theory they could then lower it to the desired 40 hour level. Yes it is time for me to pause and again express my feelings of gratitude. Thank You.

In short, we have lost much and have precious little to show on our side. We are an industry that is already being asked annually to raise the State minimum wage above most other States. Our workers are usually paid above this wage due to the unique skills they offer and the shortage of this employee pool. We cannot stop trying to influence sound economic policy on the new majority in New York Legislature. The gap between urban and rural unfortunately did not narrow after all of these debates. Unfortunately, if agriculture is to remain viable in New York our work is not over but has only just begun. I fear those that do not understand our world have a new thirst for more in the future. Pardon me if I do not say “thank you.”

Grow NY Farm Rally

There will be two bus pickup available.  One in Batavia at Exit 48, Farm Credit East -pick up at 6:30 a.m.

The other will be in Waterloo at Exit 41, Petro Parking Lot – Pick up at 7:30 a.m.

*Other sites may be added if needed.

Please contact if you would like to participate, especially if you would like a bus ride.

Let us know if you would like to help but can’t make the rally.

 

Public Hearing on Farm Worker Fair Labor Practice Act Senate Bill 2837, SUNY Sullivan, Loch Sheldrake, NY

My name is Paul Baker. I grew up in Niagara County on a fruit and vegetable farm. I was the fifth generation to work on this farm. My Son Brett would follow me and be the last, sixth generation.  I have always lived with “farm workers.”  My father worked for over 25 years with the same migrant family from Florida. In the winter they harvested citrus in the Ocala area of Florida. When the citrus was harvested they traveled to our farm to harvest our crops. Each mid-November they returned to Florida to the citrus.

I grew up with these people. After work I played basketball with them in the barn. Once, when I was struggling with my high school French studies, my Dad’s foreman, a WWII vet, made me only converse with him in French. A language he learned while serving our country in the war. Later when the farms labor was from Jamaica my son would go each night to the Housing and enjoy music with the men, his friends.  I tell you this because in agriculture we have a very strong bond with our help. They really are an extended family. For 18 years we welcomed basically the same men to our farm to complete the growing cycle. The housing was always very close to our own. After my Father passed away my Mother was asked if she felt unsafe living so close to the camp? Her reply was” I feel much more at risk when they are not there.”

I tell you this multi-generational tale to try to illustrate the unique bond we have with our employees. To suggest that we would not have their best interest in mind is to not comprehend this bond. If we mistreated our employees, then why did they come back each year?

Paul Baker,
Executive Director
NYSHS

I have heard in the two previous hearings statements to the effect that farms could always pay more to their employees. This is not an economic issue but a moral one. Over the years we have had to find ways to offer increased wages. Cost of living continue to increase. History will support me when I tell you that agriculture has met this challenge through research  improvements in farming practices. Higher yielding orchards, improved root stocks, labor saving equipment have been ways we have been able to meet these increases in labor costs.

In principle I find many of the items in this bill misleading. To people who do not know our history you would be led to believe our employees do have basic protections such as workers compensation or unemployment. All of our housing is state and often federally inspected. Farm owners, for years, attend self-improvement seminars on compliance and ways to improve human resources.

I think it is time for both sides to try to find ways to continue this long positive history of farm employees in New York State. To do this, both sides must agree that at the conclusion of this effort we will have a strong base for agriculture in our State. Only then can both sides continue. Yes this is a moral issue. Unfortunately, even in houses of worship they find it necessary to pass the plate. Economics is a fact of life.

I think I speak for farms across this State. We are willing to discuss issues and find solutions to meet your request for the big questions of the day, those are at what level can we afford overtime and collective bargaining, so long as it has a no strike clause. I hear many want a mandatory day of rest included. I would offer that often this should be left to the wishes of the employees and the seasonal pressures of the moment.

I am here to tell you that the system is not broken. We do not have employees on strike or in the streets carrying protest banners. Can we improve conditions? Every human resource situation today can only reply, of course.

Hearing at Morrisville SUNY on Farm Labor

Thank you for the opportunity to present some objective observations from my position as the Executive Director of NYS Horticultural Society during the last ten years. For 40 years earlier I was the owner operator of Baker Farms in Niagara County. This was a fruit and vegetable fresh operation. My observations then come from two different perspectives. I have real world farm “boots on the ground” and organizational experiences.

I applaud the efforts to have multiple hearings so that every side of this discussion may be uncovered.

Paul Baker,
Executive Director
NYSHS

In my opinion, the Senate and Assembly bills we are here to discuss have long lasting implications for all of New York State agriculture and the entire up state economy. In short we need to get this right!

To begin, I am certain that everyone here has the most sincere intentions to make certain all farm workers are given every protection under the law. Farming is different from almost any other occupation. It requires total dedication to your craft. Traditional norms often do not apply. Societies have attempted and failed, such as in the Communist models, to remove the farm from the owner. In my opinion, farming is in many ways similar to being a parent.  Just as when your child has a need, you address it with no regards to time. When a crop needs to be harvested or a herd needs to be milked it has to be addressed. Farming seldom can be slotted in an 8 hour or 40 hour time slot.

When you select agriculture as your career path you accept certain realities. Just as one accepts if you are a doctor you cannot dictate when your expectant mother will deliver her child.

Agriculture, unlike public government is dependent on producing products that will meet public demand. Each farm must produce and market within the economics of the supply and demand chains. Unlike State Government that can dictate annual increases in minimum wage. Agriculture pricing is a product of world and national supplies. Buyers will seek the highest quality for the lowest price. Always have and always will. Our grocery stores will never be void of the highest quality produce and food products. The sad truth is that if New York fails to produce one gallon of milk or one bushel of apples our local shelves will remain 100% stocked.

It is this reality that brings me to my question for this body. What is the desired end best result from this legislation? It will not serve any farm worker if we create legislation that does not allow agriculture to remain competitive in this food marketing supply chain.  If farms cannot meet payrolls they will be forced to close or dramatically alter their product choices. They will be forced to downsize, move away from labor intensive agriculture or close. In each of these examples it does not offer greater opportunities for farm employees.

We have the opportunity to calmly explore numerous options beyond the current language in the  Senate and Assembly bills. I honestly feel that the final wording of these Bills can be drafted that will allow NYS Agriculture to remain a leader in production. It also can find ways to mutually protect both the employer and employee from unfair labor practices. No one wins if the final legislation is not forward thinking in ways to see Agriculture continue in New York State.

I am encouraged that we are having these hearings. I pray for cool heads. I know that farm workers are some of the hardest and most talented workers. All of New York Agriculture is united in finding ways to protect and reward farm employees. To use an old saying we must be very careful in drafting this legislation so that we do not “throw the baby out with the bath water!”

Thank you for the opportunity to address this hearing.

 

 

Hearing on Senate Bill 2837 Suffolk County Legislature April 26, 2019

Mindset of Agriculture Today While we Await the Outcome of Senate 2837

Paul Baker,
Executive Director
NYSHS

I thought it might help to hear what is on the minds of Agriculture in New York today. As the Director of 3 farm boards, I receive, on a daily basis, calls from farms asking me to project the outcome of this legislation. Nature does not allow these farms to set everything on the back burner and await the final outcome. They must make real world decisions today that may or may not really be in their best interest depending on this piece of legislation. Here are a few of those decisions/questions;

  • Should I put my farm up for sale today before this Bill becomes a reality? There is little question that land values will take a dip if this Bill passes.  I know of large farms that have in fact sold or have placed their farms up for sale before land values fall.
  • What about investing in new land, equipment, storages, employee housing both new and improved are just a few of the questions that are on hold.
  • Should I return my seed/trees for a credit or plant it? I am unsure if I will be able to afford the labor cost later this year.
  • I actually have dairy farms that are slaughtering new calves because they cannot afford to feed them under current economics. Just meeting current bills is an impossible task. If this Bill passes as currently drafted they see no path forward.
  • Estate planning? How do we plan for tomorrow not knowing if we can survive the future costs here in New York? Young farmers are looking to other careers.
  • How do I craft contracts for 2019 if I cannot project my labor costs?
  • Time to lock in on seasonal recruitment of my labor for 2019. Can I sign a work order if I do not know the terms for myself or my employees? H2A agreements need to be crafted and advertised. If I limit my men to 40 hours will I be able to attract my experienced labor to my farm?

Most every farm at this date is locked into the 2019 crop. They are very uncertain as to the rules of employment and what this will mean for their operations. Nature will not wait. Crops need to be set in a timely basis to meet harvest before the frost of winter arrives. Overhead dictates farms must move forward. The costs of not doing so would be equally damaging.

I understand that we need to ensure that every employee is protected under the rules of fair labor. I see this discussion having huge long term effects on the state economy.  We are in the midst of annual minimum wage increases here in New York.  Due to the chronic lack of New Yorkers who will work on farms we must recruit from outside our state borders and often from outside our national borders. In order to manage our farms the reality is we must attract workers to our State. Farms, out of necessity, are using the federal program H2a.

Farms this year will have no choice but to accept the final language of this legislation for crop year 2019. The real impact will come as soon as crop year 2020. Once the true cost of labor is known, farms will drastically shift into new farming practices. If they see that they cannot pass on the new labor costs they will lose their markets. Traditional crops will have to be reassessed as to their feasibility. In short, agriculture will have no choice but to take on a whole new look. Only time will tell if this look is good for both farms and their employees.

 

Save the Date for the 2019 Becker Forum on Farm Labor

Farm worker housing, labor law compliance, and the federal guest worker program (H-2A) are key themes for the 2019 Becker Forum. The event will take place on Monday, January 14 at the Holiday Inn in Liverpool, New York. Employer compliance with new sexual harassment prevention laws will also be a prominent topic.

Featured speaker Lynn Jacquez, from the CJ Lake law firm in Washington, DC will address what policy positions to expect from the new Congress and the Administration in the year ahead. She will also address immigration enforcement trends and worksite issues that are important for farm employers.

Three presentations will focus on farm-provided employee housing. Nancy Hagopian from the NYS Department of Health will provide recommendations for improving existing housing. Ed Urbanick from Farm Credit East will discuss financing for construction and renovation of housing. A featured farm employer panel will discuss best practices for managing worker housing.

The forum will also provide information related to the H-2A guest worker program, including how some dairy farms successfully using it to access workers. Current changes in the H-2A program will be reviewed and information will be provided on how to effectively hire foreign-born workers through the program.

Attorney Michael Sciotti from the Barclay Damon Law Firm in Syracuse will inform farm employers about what they must do to comply with New York’s new regulations on sexual harassment prevention policies and training.

At the end of the afternoon there will be an opportunity for questions and discussion regarding critical workforce issues.  For a complete agenda and to register go to http://nysvga.org/expo/information/, or email nysvegetablegrowers@gmail.com.

 

Unemployment Insurance on Federally Inegligible Farm Labor

We have each heard over the years about how New York State is a very difficult State to do business in. Equally, as property owners, we pay some of the highest rates in the nation. On the flip side our education systems from kindergarten to college rank among the finest. Unfortunately, this leads us to what I term “Reverse Darwinism.” In short, we see the most ambitious and educated having to flee out of State to find employment to match their goals. This leaves us with hard working families having to see their children leave to other areas. I personally have two daughters who now, for employment opportunities, live in North Carolina and Kansas.

On the national news this morning it was reported that 14 States are now enjoying the lowest unemployment in years. New York was not one of them. California and Texas however were. This tells me that other areas are finding ways to combine jobs and opportunities. Here in New York we just approved a State budget. Agriculture, the largest industry in the Up State by far, received a flat budget. All of agriculture is facing difficult times. Global competition is a reality not just a topic of conversation. Prices are simply not keeping up with costs of doing business. I was in Wyoming County earlier this month at a meeting with Congressman Collins and the under Secretary of Agriculture. Wyoming is the largest dairy county in New York State. The room was packed. It was reported that 17 dairy farms were for sale. The price of milk is averaging $4 a hundred weight below cost of production. Times are very tough for the largest farm sector in our State.

So why do I tell you all of this? Here in New York we do not seem to be able to not find ways to defuse good efforts to enhance our progress. While our budget was flat we did approve funding to help in areas of research and promotion. Could we have done more to stimulate and partner with privat

Paul Baker,
Executive Director
NYSHS

e business? Of course. The underlying cancer here is the cost of doing business here in New York verses outside the borders of our State. Despite the fact New York was not one of those 14 States with lower unemployment we have annually a very difficult time to find the human resources we need to staff the largest industry in upstate New York. As an industry we are forced to source labor from outside our area. Hence the rise of the legal federal program H2A. Federally and in EVERY OTHER STATE BUT NEW YORK such employers are exempt from having to pay unemployment on these workers because they are, by law, not eligible to ever be covered by it. Here in New York State we have passed a law to make these employers pay for unemployment on these employees that may never be eligible to draw on the fund. Depending on an employer’s rating this rate can be as high as 9%. To make matters even more ridiculous, now New York State Department of Labor is saying an employer has to include a value for the free housing they are required to provide under the federal law. This only increases the final value of funds an employer has to pay into this fund. Many of us are wondering why NYSDOL stopped at the value of free housing? We have to provide free transportation from their homes to work here and back to their homes as well. Maybe this will be added next.

In short, this is nothing short of a money grab to put funds in the general unemployment fund at the expense of the legal farm employers. In times such as we are experiencing this should be stopped and seen as a national disgrace.

Senator Betty Little and 11 other Senators have a bill (S 139) to remove this from being a law. Assemblyman William Magee has a similar bill (A 4480) in the Assembly to remove this as well. Unfortunately, in the Assembly this is not gaining any traction. This is the most scandalous piece of legislation I have ever come across. It needs to be removed. The fact is it will not unless we make some noise to protest this. Agriculture Affiliates and the New York State Horticulture Society have drafted just shy of 100 letters to the New York Legislators to ask them to act on this. If you agree with me that this is wrong than I ask you to address your opposition to your elected representatives. To simply sit by and allow this is wrong. As I already alluded to what will be the next way they can increase the base to collect more from our industry. If you do not mind paying for something you can never collect on than sit by and wait for the next new charges.