BUFFALO, N.Y. — Harvest season means long days for U.S. farmworkers — but usually no overtime pay. Federal law exempts farms from rules entitling most workers to 1.5 times their regular wage when they work more than 40 hours in a week.
New York is now joining several states that have begun to change the rule.
The state's labor commissioner on Friday approved a recommendation to phase in a 40-hour threshold for farmworker overtime over the next decade. Right now, farmworkers in New York qualify for overtime pay only after they have worked 60 hours in a week.
Labor Commissioner Roberta Reardon called the plan “the best path forward” for farmworker equity and success for agricultural businesses.
The changes have excited workers, who say they sorely need the extra money but alarmed some farm owners, who say extra labor costs could wipe out thin profits. The threshold is being gradually dropped 4 hours every 2 years over the next decade starting in 2024.
"I think it's going to drastically change the landscape of agriculture in WNY and New York as a whole," said Travis Torrey a partner of Torrey Farms Inc. in Elba.
Travis and his five siblings run the Genesee County operation Big O Farms. Friday night they had crews harvesting onions and packing them into wooden crates, each weighing half a ton.
During New York's relatively short 120 days growing season, Travis explained how four months out of the year it takes all hands and all hours of daylight to get everything from planting to maintenance, to harvest, done. This sometimes means 60-hour weeks for some workers.
Many of the Torreys' farmworkers participate in the H-2A Visa Program like Porfirio Gabriel Reyes, who works zealously for four months to provide for his family in Michoacan, Mexico. Gabriel Reyes, like some labor movement advocates, fears that work hours will be capped.
"We want 60 hours because 60 hours is more money for us more money for the family, for food, for medicine, and a lot of work for my company," said Gabriel Reyes.
That’s what Elisabeth Morales said happened at the grape vineyard where she works in California’s Central Valley. After the state's overtime rules changed, the vineyard cut her hours to no more than 40 per week and hired more laborers so it could get needed work done without having to pay overtime.
Morales, a mother of four, said she had to take on a second job at McDonald’s to supplement her wages at the vineyard, which are $15 per hour for tasks such as weeding plus 40 cents for every box of grapes she picks.
“I would prefer to work the extra hours even though they don’t pay us overtime,” Morales, 43, said in Spanish.
Washington, Minnesota, Hawaii, and Maryland have also granted forms of overtime entitlements to agricultural workers. California, an agricultural giant, this year began requiring farms to pay overtime to employees who work more than 40 hours in a week.
However, there isn’t much national data yet to say for sure whether lowering the overtime threshold will be as bad for farms' bottom line as agribusiness predicts, or as good for workers as the labor movement hopes.
Porfirio told 2 On Your Side Friday that he may look to work in other states for more hours and more money if the change to New York's overtime threshold ends up meaning only 40 hours a week.
Farm workers were excluded from overtime pay in the federal 1938 Fair Labor Standards Act, and some labor advocates say it's a legacy of Jim Crow.
The overtime rule change is aimed at people like Doroteo, a farmhand at a Long Island vineyard who works almost 60 hours a week during harvest season, supplementing his pay with landscaping jobs on the side.
Doroteo prunes and weeds crops for $15 an hour. His pay peaks at $800 a week in the summer, when the most work needs to be done. He makes less in the fall, making it tougher to send money to his three children in Guatemala. He asked that his last name not be published because of worries he might be fired for talking about his job.
But farm owners say agriculture has been exempt from overtime rules for a reason.
“There has to be some common sense about what people expect when they go to work on a farm, and that it’s quite unique from other areas of work. It’s not something that can be done 40 hours a week and have weekends off,” said Nate Chittenden, the owner of a midsize dairy farm in Stuyvesant, New York.
Besides members of his family, his farm has 10 full-time employees.
“No farm wants to see people taken advantage of. We value people working on our farms. We want to provide for them a living while they work on our farm,” said Chittenden.
Travis Torrey has similar concerns and thinks the ruling could "drastically change the landscape of agriculture in Western New York." His brother Maxwell Torrey, also a partner at Torrey Farms Inc., concurs.
"Some farms may ask, is it worth the small margin to grow these labor-intensive crops [onions] or are going to see more corn and soybeans around? Things that are fully mechanized," Maxwell Torrey said.
New York state government created a tax credit intended to defray the cost of overtime for farm employers, which Chittenden said would help somewhat.
In Washington state, this year saw the first harvest where farm workers could qualify for overtime pay after 55 hours worked. That threshold will drop in a phase-in that will make workers eligible for overtime after 40 hours worked by 2024.
In California, as more workers became eligible for overtime, some farms have switched to less labor-intensive crops like walnuts and almonds, which can be harvested efficiently using man-operated equipment, said Brian Little, the director of employment policy at the California Farm Bureau, which represents farmers.
He also said some growers are moving towards machines and automation, like Torrey said, rather than people, to do things like prune trees.
“It can run for hours. It doesn’t care if it’s 95 degrees outside. It doesn’t take a lunch break, and it doesn’t care if it’s working nine and a half hours in a workday,” Little said.