By Elizabeth Henderson
After twenty years of intense campaigning by farm worker advocates, the NYS Legislature passed S.6578 Ramos / A.8419 Nolan, the Farm Laborers Fair Labor Practices Act (in previous years known as the Farmworker Fair Labor Practices Act) and on June 18, 2019 Governor Cuomo quickly signed it into law. The passage of the bill was made possible by the new Democratic control of the NYS Senate as well as the Assembly which has passed similar bills year after year. The NY Farm Bureau vociferously opposed the bill, declaiming that the requirement for time and half overtime pay would wreck farming in the state. Farmworkers hailed the passage as a victory for basic labor rights and fairness. As organic farmers, we salute the justice of finally ending the exclusion of farmworkers from labor protections and acknowledge their freedom of association. We appreciate the legislative process, including lengthy public hearings where many farmers and farmworkers were able to express their views, and the resulting compromises, while far from perfect, are at least steps in the right direction. Until farmers can afford to pay living wages and full health and retirement benefits to farm workers (and to themselves), we will not have a farming system that is truly worth sustaining.
Assemblywoman Catharine Nolan, one of the prime sponsors of the legislation, described the negotiations and compromises that went into shaping the final language:
“We tried to thread the needle in a fair way. We are listening to the farmers in our state. The original legislation had a 40-hour overtime trigger. We agreed, in the interest of moving forward and the unique challenges the farm industry faces, to go to a 60 hour trigger. We also made a change in the law so that people paying into unemployment for H-2A employees get a reduction in their unemployment. We put in a day of rest but that day of rest has to be agreed to and counts a day of rain as a day of rest. We also modified their ability to strike. That’s a very serious compromise in my part but we did agree, and the Farm Bureau, again, has been a part of the discussion, agreed to a no-lockout hardship type of process. Each step of the way we tried to match a compromise with the Farm laborers with a compromise for farmers and match them in tandem.”
The bill takes effect January 1, 2020, except for the housing requirement which takes effect a year later.
So what does the Farm Laborers Fair Labor Practices Act (FLFLP) mean for organic farms? This is what is in the final language and you can read the NY Department of Labor interpretation here– (https://www.labor.ny.gov/immigrants/farm-laborer-fair-labor-practices-act.shtm.)
- Amends NYS labor law which had excluded farmworkers so that it includes farmworkers as “employees” under the NYS Constitution which means that farmworkers have the right to freedom of association and collective bargaining, that is, the right to gather in groups to discuss concerns and to form unions if they so choose. This is the language of the NY Department of Labor: “Farmworkers possess the right to organize, which includes forming, joining, or assisting labor organizations, and the right to bargain collectively through representatives of their own choosing. This includes the right to engage in concerted activities (any activity, discussion, or meeting directed at improving terms and conditions of employment, or the group interests of employees), for the purpose of collective bargaining or other mutual aid or protection, free from interference, restraint, or coercion of employers. However, farmworkers do not have the right to strike. Farmworkers are protected from retaliation, including termination, if they are speaking to each other about labor conditions and organizing.”
- Requires employers of farmworkers to allow at least 24 consecutive hours of rest each week whenever possible on the day workers usually attend religious observations;
- If a worker voluntarily agrees to work on that seventh day, they must receive time and a half for the hours worked;
- Requires the overtime pay rate of one and a half times the normal rate over 60 hours of work each week;
- Makes provisions of unemployment insurance law applicable to farmworkers if the quarterly payroll is $300 or more (down from $20,000 previously), but eliminates the requirement that farmers who hire H-2A workers pay unemployment insurance for them since H2A workers return home when employment ceases and cannot collect unemployment insurance;
- Ensures that the sanitary codes apply to all farmworker housing, regardless of the number of occupants (formerly, farms with housing for fewer than 5 workers were not subject to paying for permits and to health department inspections, though they were still obliged to adhere to the codes);
- Removes the payroll threshold of $1200 a quarter for requiring farm labor employers to obtain Workers’ Compensation coverage, in other words, if you have employees, you have to obtain Workers’ Compensation;
- Requires managers to report all injuries to farmworkers to the farmer and requires notifications of compliance with Workers Compensation requirements to be posted in both English and Spanish or appropriate other language;
- Allows farmworkers to receive disability and Paid Family Leave benefits.
A team of Cornell agriculture and labor specialists has created a helpful resource for calculating the costs of changes required by the FLFLPA and for considering various changes in management strategy: “Adapting Your Labor Strategies to New York’s
Revised Farm Employment Laws.”
In order to determine what wages will be required in the future, and particularly overtime, the bill establishes a farm laborers’ wage board made up of one member of the Farm Bureau, a member of the AFL-CIO and one person appointed by the state labor commissioner. The group must hold its first meeting by March, 2020 and make a report to the Governor and state Legislature on overtime work by Dec. 31, 2020. The bill specifies that the overtime rates recommended will not be in excess of 60 hours and that the wage board will provide for a series of successively lower overtime work hours and phase-in dates as part of its determinations. According to the text of the legislation, the wage board will consider overtime rates in similar industries in New York State. Nothing contained in the wage board’s report or recommendations is allowed to diminish or limit any rights, protections, benefits or entitlements that the bill makes available to farmworkers.
The bill allows farmworkers to unionize using a card check system that makes unionization a bit easier. This is the system used for public employees like firemen and police. In private industry, workers usually have to hold a union election and it is during the period between the announcement of the election and the vote itself that employers often put pressure on employees not to join the union. The card check makes the choice more private. Both strikes by employees and lockouts by farm owners are prohibited, and union contract disputes between management and labor will be resolved through binding arbitration as with firefighter and police unions.
Farmworkers will now be covered by PERB which enforces the Public Employees’ Fair Employment Act of 1967. They do not know agriculture, and admittedly will have a learning curve for how to deal with cases coming out of farms. https://perb.ny.gov/ They encourage communication on any questions related to mediating or arbitrating disagreements with farm laborers:
- PERB is the primary resource for employers in a mediation process. PERB Office of Conciliation – 518 457 2690.
The initial language of the bill required immediate implementation of time and a half for overtime over 40 hours a week. At the legislative hearings on the bill, Andrianna Natsoulas, NOFA-NY’s Executive Director, stated: “We are concerned that the overtime pay provisions would significantly increase labor costs for small farms, making them unable to provide jobs for farm workers.” NOFA-NY took the position that we could not support the original version of the bill, although we supported the bill’s basic premise of fairness for farmworkers, and in comments asked lawmakers to reconsider provisions that would disadvantage organic, sustainable, and small-scale farms.
Invoking the Organic Principle of Fairness, at the January, 2019 Annual Meeting, NOFA-NY members voted for the following resolution: “we stand for fairness for all of the people who work on farms, farmers and hired workers alike, and would support a revised version of FFLP if family-scale farmers and representative farmworkers, including both NYS residents and immigrants, can be at the table.” Strictly speaking, that is not exactly what took place, but the voices of farmworkers and family-scale farmers were heard at the public hearings and on visits to farms by Senator Ramos and other legislators. The Farm Laborers Fair Labor Practices Act is legislation organic farmers can live with. How difficult or easy that is will be determined by what happens next.
On the federal level, Kamala Harris is sponsoring the Fairness for Farm Workers Act that would extend time and a half for overtime to farm workers nationally, gradually reducing the overtime trigger from 55 to 40 hours from 2021 through 2027.
Don’t Lament, Organize!
Since the passage of the FLFLPA, instead of lamenting about the weaknesses in the bill, NOFA-NY has been working with other farmer and consumer-based organizations to develop a set of proposals which would help small and mid-scale family farmers and farmworkers navigate the current difficult financial climate in the face of climate change, unequal competition, unfair contracting practices, development pressures and farm gentrification. These are some of the proposals we have in mind:
* expand the definition of the family members who are exempt from the FLFLPA to include owner engaged relatives including aunts, uncles, nieces, nephews and cousins;
*increase the NY Workforce Retention Credit from $500 in 2019 to $800 for each farmworker who works more than 500 hours annually;
*when NYS invests economic development money in food processing, wholesale and retail businesses, require that they purchase significant percentages of the produce they use or sell from NY farms;
*increase purchases of NY farm products for use in NY school meals and other institutional meals;
*require that a processor’s principle ingredients must be at least 70% NY grown, raised, harvested, foraged or caught/landed to qualify for the NY Grown and Certified label;
*Fund technical assistance to farmers to help them build strong farm teams with improved labor retention rates and higher worker satisfaction so that farmwork becomes more attractive as a career.
*begin work to improve the fairness of the contracts that farmers must sign in order to sell their products to processors and retailers;
*support policy changes on the federal level that will raise prices to farmers to the parity level that covers the full costs of production; and
* support anti-trust laws, to reduce the control exercised over farmers and the entire food system by the businesses that purchase from farmers for retail or processing and that supply farm inputs.
PS Please keep in mind that the minimum wage in NYS will be $11.80 an hour upstate and $13 in Westchester and LI.