ALBANY, N.Y. — As the 2021 season draws to a close for New York fruit grower Jim Bittner, he is worried his payroll costs could soar if a little known state panel decides to mandate that farmers pay their workers overtime for all time worked in a week in excess of 40 hours

The current weekly overtime threshold for agricultural workers in New York is 60 hours. That was put in place two years ago. Before then, New York farmworkers did not qualify for overtime, as employees in other industries do after working 40 hours.

No overtime

Bittner, of Niagara County, said if the three-member state Farm Laborers Wage Board drops the overtime threshold to 40 hours or even 50 hours per week, the effort to put more pay in the pockets of farmworkers could boomerang, leaving those employees with fewer hours of work and a reduction in earnings.

“We would limit the number of hours we give to where the threshold is set,” said the operator of Bittner-Singer Orchards in Appleton, noting his farm is in no position to absorb an increase in payroll costs.”We are just not going to pay overtime.”

The New York Farm Bureau and numerous lawmakers representing upstate districts dotted with farm fields are bracing for hearings on the issue. They must be held by Dec. 15, though they have yet to be scheduled by state Labor Commissioner Rebecca Reardon.

The members of the panel include: Denis Hughes, former president of the state AFL-CIO, Brenda McDuffie, president of the Buffalo Urban League; and David Fisher, president of the New York Farm Bureau.

Doesn’t add up

They are expected to get an earful from both farmers and groups advocating for the rights of farmworkers.

Contacted at her Clinton County farm, Helen Giroux of Giroux Orchards, said about 200 workers from Jamaica, after qualifying for federal H2A agricultural visas, pick apples each season. The nature of crops, she said, leads to a compressed period of time to complete a harvest.

Apples, she noted, don’t mature on a schedule that meshes with anyone’s idea of where the overtime threshold level should be set.

“Unfortunately, the costs of business is going up with everything, and this would be another added cost for us,” Giroux said. “And, to be honest, we don’t really see those returns at the other end.”

If there is a jump in labor costs, she added, “That may mean that we refresh and replant fewer orchards next year.”

Essential service

New York is one of just six states that provide farmworkers with overtime coverage. California is slated to move to a 40-hour threshold in the coming year. The other states where farmers qualify for overtime are Minnesota, Hawaii, Maryland and Washington.

Labor groups and immigrant advocates note state overtime exemptions for farmworkers are an outgrowth of the Fair Labor Standards Act in 1938, They contend the exclusions were hatched in the Jim Crow Era of racist laws and policies and would not have continued if the majority of farmworkers were not Hispanic as they are now, but Caucasian.

Ivy Hest, spokeswoman for the Columbia County Sanctuary Movement, said ending the carve-out that shields farms from paying overtime unless workers put in excess of 60 hours in a week on the clock is a matter of economic justice.

“Farmworkers have proven throughout the pandemic that they continue to show up and provide an essential service, and it is unfair to treat them differently from other workers,” Hest said. “What they do is hard, back-breaking labor, and to treat these workers differently doesn’t make sense.”

Unique industry

At the statehouse in Albany, farmers pushing against a reduction in the overtime threshold have drawn the backing of Republican lawmakers and a smattering of Democrats from rural areas, while the argument for a reduction in the threshold has primarily been made by New York City area Democrats.

Sen. Peter Oberacker, R-Otsego County, said having economically viable farms is crucial to the upstate economy. He noted agriculture is a “unique industry” where long hours in the field at harvest and planting times are required.

Should the overtime threshold fall to 40 hours, Oberacker said, “Some farms might just as well close up and go home” rather than facing a regulatory scheme that impedes their ability to turn a profit.

Another upstate lawmaker, Sen. Thomas O’Mara, R-Elmira, has submitted legislation that would delay action on the proposal to reduce the threshold number of hours until the end of 2024, arguing more time is needed to assess the financial impacts to family-owned farming operations.

In a 2019 report, Farm Credit East estimated the effect of mandatory overtime for farmworkers in combination with a series of annual hikes in the state minimum wage would boost agricultural labor costs in New York by $299 million.

Jon Rulfs, operator of Adirondack Farms, said he hopes the wage board closely examines the impact its decision on the overtime question will have on employers providing tens of thousands of jobs to farmworkers.

“It would obviously be a financial burden on us and a potential burden on the employees because we would try to reduce hours,” said Rulfs, 65, a life-long dairy farmer who has grown the business to 120 full-time workers. “In ag, we go 24/7. We work when we need to work.”

He said his company shows its appreciation to the workers. “We don’t lay anybody off,” he said. “We are dependent on them, and we try to take care of them.”

Joe Mahoney is the CNHI statehouse reporter for New York. Reach him at: jgmahoney31@gmail.com