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New York Farmworkers Get Labor Rights but Legal Battle Looms (2)

Jan. 6, 2020, 11:17 AMUpdated: Jan. 7, 2020, 10:33 PM

Farmworkers in New York now have rights to overtime pay and to unionize, but full implementation of a state law that guaranteed new workplace protections faces renewed opposition from farm operators fearful of increased labor costs.

The law took effect Jan. 1, but a state judge granted a request from two farm groups to halt enforcement of some of its provisions as a legal challenge plays out.

Passage of the law last year marked the culmination of a decades-long political struggle in the state over whether to grant workplace rights to tens of thousands of farmworkers, who weren’t guaranteed the same protections as other workers under state law. The measure already has inspired a push to organize farmworkers in the state.

The court challenge, filed by the New York State Vegetable Growers Association and the Northeast Dairy Producers Association, comes at a time of rising economic insecurity for farmers, who have been battered by stubbornly low commodity prices and trade uncertainty. Many farm operators in the state say the law doesn’t recognize the economic headwinds they face and places them at a competitive disadvantage. Advocates for farm workers, however, say the law is a hard-won victory for a workforce that performs arduous and often dangerous work and historically has been excluded from basic workplace protections.

The law was a compromise between worker advocates, lawmakers and an industry-based coalition led by the New York Farm Bureau. Advocates had joined forces since at least the 1980s to campaign for farm workers to be given the same protections as other classes of workers under state law. The state’s Farm Bureau continually fought against such changes, and held the advantage of greater political clout than the scattered, nonunion workers.

Then came a New York State Supreme Court decision in March that cleared the way for farmworkers to unionize. That victory, combined with a Democratic majority in the state Senate, made legislative passage possible.

The law gave New York’s agricultural workforce rights available to farmworkers in only a handful of other states. New York’s example could serve as a blueprint for farmworkers in other states.

“The New York legislation and other pending cases in states are certainly big for expanding the rights of farmworkers,” said Rebecca Smith, director of work structures at the National Employment Law Center. “It has been a long process to get them covered, and it will continue to be hard-fought around the country.”

A Vulnerable Population

The New York law allows farmworkers to organize, collect overtime pay after 60 hours per week, and take 24 consecutive hours of rest every seven calendar days.

A late-stage compromise that keyed passage lifted the threshold for overtime pay to 60 hours, from 40 hours. It also enabled farmers to count 24 consecutive hours of rest resulting from weather or crop conditions as the required weekly day off; barred work stoppages and lockouts; and established a three-member wage board to evaluate overtime pay issues in 2020.

Only four other states—California, Hawaii, Minnesota, and Maryland—require farmworkers to be paid overtime under certain conditions. California is phasing in a stronger state law, and a legal battle is ongoing in Washington state.

Twenty-five states explicitly exclude agricultural or farmworkers from their general labor laws. Six of the 25 states with exclusions have labor relations statutes specific to agricultural workers that provide for collective bargaining. The National Labor Relations Act excludes agricultural workers from coverage under federal law—a compromise to gain the support of Southern Democrats when the law was passed in 1935—and many state laws were written to mirror federal law.

Richard Witt, executive director of the Rural and Migrant Ministry, created the Justice for Farmworkers Campaign in New York. He said several unions are looking to organize farmworkers in New York, and advocates are working to develop materials and programs to support unionization drives.

After the bill was passed, a labor coalition that included SEIU Local 32BJ, the Workers’ Center of Central New York, and the Worker Justice Center of New York, targeted Chobani, the state’s largest dairy manufacturer. The unions pressured the company to support organizing rights in the dairy industry by working with farms that support the new protections.

Targeting corporations that purchase agricultural products has long been a strategy unions have wielded to pressure farmers to give workers overtime pay and other protections. Farmworkers are a vulnerable population, with a high number of immigrants, advocates say, and they often don’t understand their rights in the workplace. That makes it harder to unionize them. Nationally, only about 1% of agricultural workers are unionized.

“There is a real history of exploiting workers and our economy being based on that exploitation,” Witt said. “At the same time, there is a pride in agriculture, and it’s hard to balance those two situations. It took a long time to educate folks and build the political capital.”

Farmers Adjust, or Fight

The state Farm Bureau estimates that overtime will increase costs for New York farmers by 17%, or nearly $300 million. The state in 2017 had roughly 33,400 farms, with 55,000 total workers, according to the latest available data from the U.S. Department of Agriculture. The number of farms and total acreage declined since 2007, but income increased by more than 20%.

Farmers lobbied against the new law, and the New York State Vegetables Growers Association and the Northeast Dairy Producers Association filed suit just before it took effect. The suit argues the law’s definition of a farm laborer could include supervisors, which would conflict with federal law.

The groups also say the law creates an “unworkable Catch 22" because it requires farm owners to refrain from interfering with a supervisor’s ability to communicate with other workers about union rights, while also requiring owners to instruct supervisors not to interfere in any union activities. They further argue the prohibition on strikes conflicts with a provision in New York labor law that prohibits employers from seeking to prevent such activity.

The groups questioned the extent of another exception in the law—that members of an ownership family who work at the farm are exempt.

“Providing clarity to New York’s farms will help us protect our management teams, while assuring family members and others employed on our farms are treated fairly,” Jon Greenwood, chair of the Northeast Dairy Producers Association, and co-owner of a dairy farm in Canton, N.Y., said in a statement.

The judge’s temporary restraining order halted enforcement in relation to supervisors and members of ownership families, but allowed the law to take effect for the vast majority of farmworkers. The hearing for preliminary injunction is set for Jan. 24.

“They argued that if the provisions are unclear the whole law should be struck down,” said New York Civil Liberties Union legislative attorney Lisa Zucker. “The legislature spoke clearly; the governor signed the law. We won the lawsuit last year. The right to collectively bargain is a fundamental right. An 80-year injustice was corrected.”

Zucker advocated for passage of the law, which is known as the Farm Laborers Fair Labor Practices Act. Her NYCLU colleague, Erin Beth Harrist, represented workers before the state Supreme Court in the case that preceded passage of the law.

‘Flaws’ Persist in Legislation

The state Farm Bureau, despite having worked to get the law passed, believes farmers would be hampered by its “flaws,” said Steve Ammerman, the group’s spokesman. The group disagrees with the requirement that wages be paid on the seventh consecutive day of work and based on an overtime rate, if a farmworker waives their right to a day of rest. It also opposes the creation of a wage board.

Farmers in other states who don’t have to pay workers overtime will have a competitive advantage, which could hurt the industry in the state, Ammerman said, noting that the law also creates compliance headaches for farm operators.

“We have been in education mode. This is a complicated new set of regulations,” Ammerman said. “There is a huge learning curve with all this.”

Kim Skellie, a dairy farmer in Ontario County, N.Y., began working several months ago on on how to handle the changes. He said costs would increase between $70,000 and $80,000 a year for his 28 full-time and 20 part-time workers. He said he added one new worker and planned for his workers to earn up to four hours each week in overtime.

On average, he said, the workers take on 12-hour shifts and work 60 to 72 hours a week, earning between $12 and $18 an hour. He said he decided to cut annual bonuses because it created complications under the law. The workers must receive time-and-a-half overtime pay that includes bonuses; he said that presented an accounting issue he wanted to avoid.

Skellie said he fears unionization, but allows workers to use a conference room two hours a day to discuss the new law.

“With any business, it would be a difficult situation,” Skellie said. “You have to maintain some profitability.”

(Updates Jan. 6 story in paragraph 24 to reflect New York Civil Liberties Union attorney Erin Beth Harrist represented farmworkers in a separate case. An earlier version corrected attorney Lisa Zucker’s advocacy role.)

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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