The Wage Board kept us all hanging until the very last afternoon of the year. After several open comments from the public, they voted. Before voting the three-member Board held several discussions. These discussions were open to the public. Only the Board was able to discuss the subject.
On the final hour, a vote was taken. In essence, the verdict was that we needed at least one more year before we could feel confident on any lowering of the overtime threshold. Dennis Hughes, representing the AFL-CIO made a motion to submit new language. He wanted to lower the overtime by 2.5 hours each year for 8 years. This would move the overtime from a 60-hour level to 40 in 8 years. He felt that the farm workers have already been denied the 40-hour protection now for 80 years. He was terribly upset at the decision to wait one more year. He felt it was an unnecessary delay. His amendment was not accepted. This report will now be sent to the governor for his review.
In my opinion, we dodged a bullet here for one year. While I see it as a victory for agriculture, I feel the war is not over. In fact, this decision may actually spark new opposition from the non-agriculture population.
The Chair felt that the past year had placed unusual harm on all small business due to Covid-19. I really do not know if she would have supported the same verdict under a normal year.
David Fischer represented agriculture on our collective behalf. He is the President of New York State Farm Bureau. I do not want to be a Monday morning quarterback, but I think there are a few points left out.
The four main points I would hope we would build upon before next year are the following:
- I do not think there was enough discussion as to what the farm workers wanted. How any change would impact their quality of life?
- What would be the impact on future farmers? Would they feel confident or concerned about farming here in New York?
- The negative impact it would have on farmland value and farm net worth.
- The loss for non-farm workers who are dependent on farm products that create the need for their jobs.
For the next season we can operate as we did in 2020. I think we need to continue to weigh in on the impact any changes will have on the entire New York economy. As I said, yes, we won this battle, but the war is far from over.
On Monday, August 31st, along with a wide cast of concerned people, I offered testimony to the NYS Wage Board. It was very encouraging to hear the voices of so many people. In all the opinions offered by those in agriculture I felt they presented a very clear vision of what could happen. It was nice to hear voices from younger future farmers in this discussion. In all, I was very pleased to hear the effort put forward.
I am sharing the two testimonies I have offered this year. I can only hope that calm cool minds will see the wisdom in not making this transition any more costly. As many people stated, they accept the legislation, they are asking for time to transition under this act.
Fruit farm A expects to harvest 120,000 bushels of apples this year. History has told them that they should expect, on average, that a person will harvest 100 bushels/day. So this farm will need 1200 man days to harvest this crop. The farm has 24 beds. This means each bed (man) should pick 5000 bushels. So this man has 50 days to accomplish this. In the past the men have averaged 60 hours per week. If we are forced to cut each man’s hours back to 40 hours per week than we will need more days to harvest or more men to accomplish the job.
Weather and fruit ripening dictate that we do not have more time. We must accomplish this task in the 50 days. So the only solution is that we need more men. If a man picks 100 bushels each day then he will harvest 400 bushels per week. So 120,000 bushels divided by 400 bushels will mean we need 300 man weeks if we hold the worker to 40 hours per week. So we have gone from 24 men harvesting 120,000 bushels in 50 days to now needing 30 men to pick the crop.
So we will need 6 more beds and pay transportation cost of $1300 per man, Visa of $190 per man an additional $150 per man travel for extra time and food from port to port. So Fruit Farm A will have to first construct housing for 6 more men. Second, the additional travel will be $1640 plus free housing while on the farm per extra man. This is $9840 additional variable cost to get the same amount of work completed. His costs have risen by 19.5% to get the same amount of work done. Plus the costs of new housing.
In short, this is a deal breaker. The original 24 men will not be happy only getting 40 hours per week. Realistically I expect this group to source employment in other regions. The idle time will no doubt become an issue. Buyers of this crop will not offer a premium for this fruit. They will source the highest quality for the lowest price.
In short, this fruit farm will be priced out of the market. His cost per bushel will be higher than other regions. He has no way to cover the extra labor cost. The employee will be forced to find employment in another state. Packing house jobs, storage, trucking and more will be lost.
There is a reason that for decades agriculture has been exempt from overtime. The seasonal glut needed makes it impossible to fill harvest jobs for such a short window of time. The perishable nature of this commodity is what makes farming different. The fact that we offer overtime at any level will not attract new employees to meet the seasonal needs.
In conclusion, I think New York State agriculture can and will adjust to the 60 hour level. Many will
choose to drop out or convert to agriculture that is mechanized. To move this to a lower level will force a drastic change in our industry. Farmers do not have to farm in New York State. It will be difficult but if they wish to farm they can relocate. I fail to see what industry will rush to fill the void by this exodus. I am asking for a study to validate my claims. To rush to 40 hours without understanding the net effect will be irresponsible. There is no need to add additional burdens on this industry.
Testimony Presented to Wage Board in Syracuse, NY, March 13, 2020
Early in March I had to run an errand to the east side of Buffalo, NY. I was traveling on a major route about 8 AM. The traffic was only a fraction of the normal weekday. In truth, the roads back in the country had more traffic. This was a reminder to me that here in 2020 we are as a State totally committed to the 40 hour work week. This single regulation is the deciding driver to the length of the work week in the non-agricultural environment.
On the farm we do not have the luxury of saying it can wait till Monday and a fresh set of 40 hours. Livestock has to be fed. Animals are giving birth. Cows need to be milked. Fruit and vegetable crops need to be protected from frosts, insects, disease and ultimately harvested at the proper time. The 24-hour necessity of applying these skills makes it impossible to dictate one 40-hour period each seven days that can be able to do the proper job.
Farms of all types are dealing with live products. Just like a doctor cannot tell a pregnant mother to only deliver in his set 40 hour period of service. The current 60 hour standard will impose economic pressures on our farms and their employees. Commodity prices will not offer a bonus to farms who offer overtime wages. If a farm cannot maintain production costs below sales offerings it will go out of business. The loss of this singular farm unfortunately will, in reality, have little impact on total supply. However, if this story is repeated enough it will impact community values. What will have an immediate impact will be the employees who no longer have a job. Really how have we helped improve the quality of life for these employees?
Overtime came into play during the American depression. The unemployment rate was soaring. FDR saw long bread lines and people seeking some employment. He instituted the 40 hour work week. Any hours after 40 would mean the employer would have to pay 150 % of the agreed wage. FDR was quoted as saying no employer would be willing to pay this and remain competitive. The end result was that it forced employers to curtail hours and reach into the unemployed to offer employment. Same amount of work but now it was being shared by more people. In today’s agriculture we do not have a waiting work force wanting employment for many diverse reasons.
We are an import state to meet our seasonal workforce needs. Employees will have little interest in coming to New York State if they cannot get the maximum opportunity to earn wages in a very short window of time. Simply put, employment options in other states will be the benefactor of such legislation. Farms will be forced to divert to less labor intensive crops. Production will contract. Business and employment will decline. Again how are we helping anyone?
Last June the New York State Legislature passed the Farm Laborers Fair Practice Act. It has many new regulations for the new rules of farm worker employment. The two most obvious rules were the establishment of a 60-hour overtime limit and the right for farm workers to join a union of their choice. At the very last hour during final debates a Wage Board was added to the bill. The singular purpose of this wage board is to determine if the 60-hour standard is fair and accurate. This board, upon review, may hold it at 60 or lower it to a lower number. It cannot remove it or raise the limit above 60. This wage board is to be made up of three representatives. One from NY Farm Bureau, one from the AFL-CIO and one from NYS Labor.
One of the unsettling aspects of the passage of this Act was that there was no set time for the industry to adjust to this new 60-hour standard. Other similar passages in other States have always allowed a 5-year or longer period of time. This was very obviously omitted from this Act. Therefore, the industry has no security that this 60-hour level will remain a standard. Lurking in everyone’s mind is the very real possibility that the newly established wage board will institute a lower level.
The Wage Board will meet five times in early spring. This will range from February 28 to April 23, 2020. These will be public hearings at which time people may have three minutes to make a statement as to the ruling in question. It will be absolutely essential for many voices from agriculture to take the time to express their concerns. Failure to do so will send a strong message that agriculture is in full support of a lower standard for overtime on our farms.
All concerned citizens will be afforded the opportunity to express their opinion. This means advocates for a 40-hour standard will be sharing the stage. We must counter this by offering concise logical reasons this simply has no economic room at this time on our farms.
I will be in attendance at the last 4 hearings. I personally will offer comments at two of the hearings. It is
so critical that despite your very busy work schedules you present at least at one of these hearings. We will only curtail future damage if we present a consistent argument. Below you will find some supporting reading for you on this. You must register on-line before the hearing. You will not be offered an opportunity to speak if you do not register. Below you will find the web address for you to register. www.ny.gov/content/flflpa-wage-board-hearings-sign
If you have any difficulty feel free to reach out to me for help.
You may struggle with what to say. Three minutes is really not very long. They stick to the three-minute time. Do not waist time with polite openings. Get directly to the issue. You will be asked to leave a written copy. The fact that you present will be as important as what you say. Your silence will be filled by voices for advocates for 40 hours. Can you really justify this? This is perhaps the most critical battle you will ever have to face. Farming in 2020 has no room for survival at 40 hours. The grocery stores will be fully stocked but not with food from New York farms.
Message From Brian Reeves – PLEASE PARTICIPATE IN THE WAGE BOARD HEARINGS THIS MARCH AND APRIL
As you can see by the attached announcement, the NYSDOL has scheduled 5 hearings across the state for the newly appointed Wage Board. It is imperative that farmers and farmworkers turn out and tell their stories. If we are to have any chance of convincing Albany to keep the overtime threshold at 60-hours, we need to tell our story of how lowering the threshold will threaten the viability of our farms. While our economic story is critical, we must also make sure that farmworkers turn out also and tell why they do not want their hours cut any more. These hearings come at a bad time for us, many of us don’t have many of our workers hear yet and we will be getting very busy soon, but we must make the effort to show up and be heard. I have attached some guidelines on how to have your workers testify and I believe Farm Bureau also has some tips on testifying. Please reach out to me if you need any help.
Brian Reeves 315-243-1660
NYSDOL Announces Farm Labor Wage Board Hearings
The New York State Department of Labor (DOL) has announced that the wage board will hold five hearings across the state, beginning this Friday and going through April. The wage board was created by the recently enacted Farm Laborers Fair Labor Practices Act and is statutorily required to hold its first hearing by March 1st to consider lowering the current 60-hour work week threshold for overtime. Under the Act, the Wage Board must hold at least three hearings at which the public will be afforded an opportunity to provide comments. The board will hold five hearings in various parts of the state and consider the input it gathers from farmers and other stakeholders.
New York Farm Bureau President David Fisher, a NEDPA member from Madrid, NY holds one seat on the three-member wage board. The other two members include Brenda McDuffie, appointed by the DOL Commissioner, and Denis Hughes, representing AFL-CIO. McDuffie is the chair of the Erie County Industrial Development Agency and President and CEO of the Buffalo Urban League. Hughes has served as chairman of the Federal Reserve Bank of New York and is past President of NY AFL-CIO.
Public hearings are scheduled as follows:
- Friday, February 28– 11am – Albany – New York State Museum Cultural Education Center, Clark Auditorium, 222 Madison Avenue, Albany, NY 12230
- Friday, March 13– 11am – Syracuse – Onondaga Community College, Storer Auditorium, 4585 W. Seneca Turnpike, Syracuse, NY 13215
- Monday, March 23– 11am– Binghamton – Binghamton University, Symposium Hall, Center of Excellence Building Innovative Technology Complex, 45 Murray Hill Road, Vestal, NY 13850
- Thursday, April 16– 11am – Long Island – Brookhaven Town Hall, 1 Independence Hill, Farmingville, NY 11738
- Thursday, April 23– 11am – Batavia – Geneseo Community College, William Stuart Forum, 1 College Rd., Batavia, NY
TALKING POINTS FOR FARM WORKERS AT THE WAGE BOARD HEARINGS
1.Overtime after 60 hours
Most farm workers I have talked to have said they want to make as much money as they can to send back to their families. At first, the payment of time-and-one-half sounds good until the farmer explains that they won’t be able to pay that much and will try to limit their hours to close to 60 per week. Most farmworkers are not pleased with the reduction in hours per week, but often times 60 is not that much less than most weeks they have worked in the past so they can live with it. But most workers have made it clear that if the hours decrease much more, they will go to other states which will freely allow them to work more hours and make more money per week. Explaining this to the farm worker is critical so they can explain in the hearing they don’t want this restriction on work and will try to go where they can get more hours.
- Mandatory 1 day of rest per week which the worker can opt out of and if they opt out, all hours worked are paid at time-and-one-half
The vast majority of farms have determined that they can’t afford much overtime, so they require one 24-hour period off each week. This automatically reduces the potential number of hours a worker will be paid for each week and again the workers are not happy about it.
- I often hear farmers talk about how much less money their workers can make working in Mexico. Whenever labor advocates hear this they bristle at the comment and claim that this is the USA and the pay and/or housing should be much better than Mexico.
A better way to approach this subject would be to have the farm worker talk about the opportunity that working in the US provides, and describe the decent house his family can afford in Mexico, and how he is able to provide a better living for his family because he has a chance to work on our farms in the US.
- I would suggest having conversations with ALL of your workers (both domestic and immigrant) about the purpose of these hearings and if you have any doubts about the language comprehension, consider hiring a good translator to avoid any misunderstanding later. I hope these tips are helpful and should only be followed if it fits for your farm. The more discussion you can have with your farm workers about the issues the more comfortable they will be talking about them when the time comes.