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'We are all human beings': How farm labor rights bill could change NY agriculture

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New York Farmworkers

FILE - A sign is seen outside the state Capitol before a news conference on farmworker rights on Tuesday, May 10, 2016, in Albany, N.Y. (AP Photo/Mike Groll)

Sometime in the next several weeks, New York state legislators could vote on a bill to grant farmworkers overtime pay, collective bargaining and other labor rights. It's a measure that, if enacted, would have far-reaching effects. 

Opponents of the legislation say it would harm New York agriculture and may contribute to the closure of farms across the state. Supporters argue that it would end a Jim Crow-era exclusion that prevents tens of thousands of New York farmworkers from receiving these employment benefits.

That's the focus of the debate surrounding the Farmworkers Fair Labor Practices Act. 

History

President Franklin D. Roosevelt signed the federal Fair Labor Standards Act in 1938. The landmark law established a minimum wage, required employers in most industries to pay overtime if employees worked over 40 hours in a week and mandated businesses keep payroll records. 

However, farmworkers were excluded from the law. 

Articles and academic papers about the legislative history of the Fair Labor Standards Act blame racial motives for the exclusion. An article published by the Texas Law Review explained that to pass his New Deal package, Roosevelt needed to win the support of southern congressmen. 

"Those congressmen negotiated with Roosevelt to obtain modifications of New Deal legislation that preserved the social and racial plantation system in the South — a system resting on the subjugation of blacks and other minorities," the article's author, Marc Linder, wrote. 

In an interview with The Citizen, Beth Lyon, a clinical professor law at Cornell University and founder of Cornell's Farmworker Legal Assistance Clinic, described it as a "deal with the devil." 

"It's really up to the leading states like New York state to start to undo some of that damage," she said. 

The complete exclusion remained in effect for 28 years. In 1966, the law was amended to apply the minimum wage and payroll requirements to farmworkers. But farms remain exempt from the overtime pay provision. 

New York's labor laws are similar. Farmworkers are excluded from many provisions, although there is a minimum wage standard for farms. Farms must pay workers the minimum wage if "total cash remuneration paid all persons employed on the farm exceeded $3,000 in the previous calendar year."

The bill

The Farmworkers Fair Labor Practices Act is a two-decade-old proposal that would grant farm employees collective bargaining rights, the right to unionize and at least one day off every week. Employees would be paid overtime for working more than eight hours a day or 40 hours a week. The bill would also make farmworkers eligible for unemployment insurance and workers' compensation. 

The legislation is sponsored by state Sen. Jessica Ramos, who chairs the Senate Labor Committee, and Assemblymember Cathy Nolan. Ramos, D-Queens, told The Citizen in February that excluding farmworkers from federal and state labor laws is a "remnant of the Jim Crow era." 

Before this year, the bill didn't advance. While there was support from Democrats in the Assembly, Republicans controlled the state Senate. GOP senators opposed the bill and prevented it from receiving consideration in the chamber. 

With a Democratic majority in the state Senate, proponents hope the bill will pass this year. With Ramos as its sponsor and 31 other senators as cosponsors, there are enough votes for it to pass the Senate. 

Opposition

The New York Farm Bureau and several farmers oppose the Farmworkers Fair Labor Practices Act. A hearing at SUNY Morrisville in April gave farmers an opportunity to highlight what they view as the most problematic components of the bill. 

Some farmers revealed that they already give their workers at least one day off a week and provide other benefits, such as housing and transportation. Most had no complaints with the proposal to extend unemployment insurance and workers' compensation to farm employees. 

However, many farmers oppose the overtime pay and collective bargaining provisions. The farm bureau cited a study conducted by Farm Credit East that found the overtime pay requirement would raise costs for New York farms by nearly $300 million and reduce net farm income by 23 percent. 

Judi Whittaker, a part owner of Whittaker Farms in Broome County, testified at the Morrisville hearing that the overtime pay requirement would increase the dairy farm's payroll from $500,000 to $700,000. 

Whittaker believes that farmworkers will pursue opportunities in other states if New York adopts the overtime pay mandate. 

"If we can't give them the hours they are looking for, they will leave and we will have no employees," she said. 

Anthony Emmi, of Emmi and Sons in Baldwinsville, also testified at the hearing and said the overtime pay requirement would "put an end to the way we farm." He estimates that the farm, which has 70 seasonal employees, will need to cut labor in half. 

Emmi urged legislators to consider a compromise: A 60- or 65-hour threshold for overtime instead of a 40-hour work week. 

"We simply don't bring in enough income to make it happen," Emmi said of the overtime pay proposal. 

While complaints about the overtime pay provision were repeated throughout the hearing, farmers raised other concerns. 

One reason Karin Reeves, owner of Reeves Farm in Baldwinsville, opposes the bill is the possibility of work stoppages. If workers have collective bargaining rights and form unions, she worries that a work stoppage will have a devastating effect on the farm. 

"A strike during our growing season would essentially hold us hostage," Reeves said. She asked lawmakers to consider adding a no-strike clause to the bill. 

Some farmworkers joined farmers in speaking out against the bill. They oppose the legislation because they fear work schedules will be reduced to 40 hours a week due to the overtime pay mandate. 

Samuel Montelongo, who works at Reeves Farms, said they usually work a 60- or 70-hour work week. The income earned, he continued, helps workers support their families in Mexico. 

If the bill is approved by the state Legislature and signed by Gov. Andrew Cuomo, Montelongo added that the farm could bring in more workers instead of having to pay overtime. 

"We feel that if you don't pass this law it will be beneficial to us," he said. 

Republicans remain opposed to the farm labor bill. State Sen. Bob Antonacci, a GOP lawmaker who represents parts of Cayuga and Onondaga counties, said he hasn't met with a farmer who supports the measure. 

The legislation reminds Antonacci, R-Onondaga, of the effort to end the tipped wage for servers. Many restaurants and servers opposed that proposal. 

The farm labor bill, he argued, will hurt employees as much as the farmers. 

"The employees don't want this bill. They want to work," Antonacci said. 

Support

At hearings and in interviews with The Citizen, supporters outlined the reasons why they feel the bill is needed. 

M. Patricia Smith, a former state labor commissioner who served as solicitor of labor in President Barack Obama's administration, countered arguments against the overtime pay provision. 

Farmers, Smith said, complain about a labor shortage that hurts their farms. Extending overtime pay and other rights to workers, she added, could allow farms to become more competitive and attract workers. 

Smith also highlighted the potential benefits for workers. She acknowledged that farms may reduce hours for workers to limit how much overtime is paid, but doesn't believe they will be able to avoid having employees work more than 40 hours a week. 

For workers, she noted, they could earn the same income in less time because of the overtime pay requirement. 

"I understand that (farmers) are nervous," she said in a phone interview. "But I just don't think the economics are as dire as they think they are." 

Beth Lyon of Cornell's Farmworker Legal Assistance Clinic disputed claims by farmers that they may go out of business or workers would leave New York due to the overtime pay mandate. She believes overtime pay would help laborers who live in poverty. There are high levels of poverty and food insecurity among farmworkers, she said. 

"One way to address that poverty is to simply give overtime," she continued. "Allow people to earn more for the number of hours that they work in addition to just being a matter of simple equity. It's not as if these are light jobs or easy jobs. If any job should pay overtime after 40 hours, this is it." 

Through the clinic, Lyon assists children who came to the United States alone and are now working on upstate farms. Some of the minors, she revealed, are working more than 70 hours a week. 

A challenge for Lyon is that the data on children employed by New York farms is "nonexistent," she said. While the number is unknown, she has observed children working on farms while visiting several counties in New York. 

"If you have an industry where the jobs are so unattractive that you have to fill them with undocumented 15-year-olds, then maybe you need to make the jobs more attractive," Lyon said. 

Collective bargaining rights are important for farmworkers, Smith explained, because it would provide protections against retaliation. A former farmworker, Crispin Hernandez, testified at the Morrisville hearing about the retaliation he faced while working on a northern New York farm because he advocated for better working conditions. 

Supporters of the bill say Hernandez's account isn't unique. 

"Right now in New York, if you're a farmworker and you ask for a raise, the farmer has a legal right to fire you just for asking for a raise," Smith said. "If you talk to your other coworkers about asking for a raise or talk about unsafe working conditions, you can be fired or otherwise retaliated against. That's perfectly legal. Collective bargaining rights would protect you from that." 

Smith also differs with farmers who expressed concern that giving farmworkers collective bargaining rights and the right to unionize will lead to devastating work stoppages. 

While the rights would allow farmworkers to initiate a strike, she questioned why the employees would put themselves at risk of losing most of their pay during the harvest season. 

"(The farmers) are the same people who are talking about how well they get along with their workers and how they treat them like family and how their workers want to work all those hours," Smith said. "Why would those workers want to go on strike at the heart of their income-earning season?" 

What's next? 

The Farmworkers Fair Labor Practices Act is in the committee phase. The state Senate held three hearings on the bill, which was referred to the Senate Labor Committee after Ramos reintroduced it in January. 

The bill is also awaiting review in the Assembly Labor Committee. 

In addition to the hearings, Ramos visited farms across the state to gather more feedback on the legislation. She told The Citizen in February that while she was open to suggestions, much of the bill is "non-negotiable." 

Senate Republicans held their own hearing on the proposed farm labor changes. Like Antonacci, many GOP senators oppose the bill. Farmers continue to speak out about the potential impact of the legislation. 

But the Senate GOP opposition won't be enough to prevent passage. With Democrats controlling both chambers, the bill could move quickly through the state Legislature. 

The legislation could be one of the final measures considered during the legislative session, which concludes in mid-June. There has been no timetable set for when legislators will vote on the bill. 

Some advocates and farmworkers, like Hernandez, are hopeful that the state Legislature will pass the bill this session. 

"We want to be recognized. We are all human beings," he said at the Morrisville hearing. "This is why it's important." 

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