New York’s Farmworker Fair Labor Practices Act: A Look at Both Sides

New York’s Farmworker Fair Labor Practices Act: A Look at Both Sides

This past August 3rd, 2010, the New York State Senate struck down New York’s Farmworker Fair Labor Practices Act, legislation that would improve existing labor conditions for New York farmworkers. Those in support of the bill hoped to ultimately give farmworkers equal protection and rights covered by the National Labor Relations Act of 1938, covering collective bargaining rights, one optional day of rest a week, 8-hour workdays, overtime pay for more than 40 hours/week, and unemployment insurance coverage. With 28 in favor and 31 against the bill, the fight for justice in New York farm fields was close, but not close enough.

According to labor advocates, the fight for fair agricultural working conditions in New York began 15 years ago when a group of farmworkers, while testifying in a number of legislative hearings, became aware of their exclusion from basic labor laws. With the support of labor advocacy, student, and/or religious organizations such as the Rural & Migrant Ministry, these workers went on to found the Farmworker Justice Campaign in the hopes of gaining fair labor standards for all farmworkers. In response to campaign pressure, New York enacted many commendable provisions and protections for its farmworkers, such as stricter sanitary codes for farmworker housing, stricter sanitation and drinking water requirements in its fields, worker’s compensation coverage by all but small farms for farmworkers, a farmworker minimum wage that matches the federal minimum wage, and a human trafficking statute.

Since 1999, however, the state has failed to pass any further legislation to address agricultural labor conditions despite continued pressure from labor interests. According to Richard Witt, Executive Director of the Rural & Migrant Ministry, “It’s an issue of justice, fairness and equality… There needs to be equality in the law.” Labor interests believe farmworkers laboring in one of the most dangerous and physically taxing industries deserve equal protection and rights as all workers. By providing these benefits to New York farmworkers, those who cultivate our daily food will be protected from existing and potential exploitation, neglect and injustice.

On the other hand, the New York Farm Bureau and many New York farmers stand in stark opposition to the New York Farmworker Fair Labor Practices Act. Although many claim to care for farmworker rights, they believe this bill, also referred to as the “Farm Death Bill”, will force small, family farms out of business. In the words of Assemblyman Cliff Crouch, “Bills like the ‘Farmworkers Fair Labor Practices Act’ will raise the cost of farming in New York State, forcing farmers to close their family farms, killing jobs and making local produce harder to find for New York families.” With an estimated cost of $200 million annually, the bill will not only hurt agriculture but also the statewide economy as a whole.

For farmers and the New York Farm Bureau, universal overtime pay, unemployment insurance coverage, and collective bargaining rights are the most controversial components of the Act. Overtime pay alone could increase labor costs by 15%-25%, an increase many farmers would not be able to afford. Apart from cost alone, many believe overtime pay should not apply to the agricultural industry at all. An industry whose inherent nature implies seasonal periods of either intensive work or little to no work requires overtime work from both farmers and their employees due to the demands of seasonal farming, not the oppressive demands of an employer. Furthermore, farmers in all likelihood will develop employment or farm practice strategies to avoid the added costs of overtime pay, such as hiring more workers but limiting each worker’s hours/week, mechanizing production, or downsizing their farm to rely on family labor. For temporary and permanent farmworkers who either need a job or want more than 40 hours/week, the overtime pay requirement could actually hurt instead of help them.

Unemployment insurance coverage for farmworkers would also significantly increase labor costs, paperwork and compliance activities for farms, according to the NY Farm Bureau. Small farms that have previously been exempt from paying for coverage would certainly face financial hardship due to this added cost, potentially costing more than the short-term employment of the worker. In addition, many of the covered migrant and seasonal workers would not receive the intended benefits. Universal worker coverage will actually act as a tax on farmers as most migrant or seasonal workers, who are typically employed for short periods of time, will not be eligible to collect unemployment insurance.

Opponents to the Farmworker Fair Labor Practices Act also believe the right to collectively bargain will irreparably hurt NY farms. With unionization rights, workers can make unwarranted demands, threaten to strike during harvesting or planting time, and potentially put a farm out of business by doing so. Additionally, the logistical aspects of collective bargaining are inherently flawed for migrant and seasonal farmworkers. In general, unionization will be time consuming, costly and impractical for migrant or seasonal workers who come and go with the season. New York’s “closed shop” requirement would also disadvantage seasonal or migrant workers who, without having voted for their representative union, would involuntarily have to pay membership dues to be employed by any farmer.

In response to these arguments, labor interests such as the Rural & Migrant Ministry point out that the Bureau has merely repeated the same stories of financial woe and ruin from the 1990’s when the Bureau tried to prevent housing sanitation, field sanitation and water requirements, and farmworker minimum wage reform. At the time, the Bureau claimed that small farms would not be able to foot the bill and the state would see a significant loss in production. Although the state has seen a high rate of farm foreclosure and decreased productivity, labor interests suggest that small farms more so face financial hardship and foreclosure due to the corporatization of agriculture than due to increased labor costs. In fact, equal rights for farmworkers would help level the playing field between agribusiness and the “family farmer”. By increasing labor costs for large farms that dump markets with cheap products subsidized by a large, cheap labor force, small family farms that the New York Bureau claims to support will actually have a better competitive edge.

Despite this never-ending debate of equality vs. economic capability, reforms were drawn up for the New York Farmworker Fair Labor Practices Act in order to address some of the Bureau’s concerns. In December of 2009 through a series of meetings, farm and labor interests made significant changes to the bill, including:

  • changing the standard workday and workweek from 8 to 10 hours per day and from 40 to 60 hours per week, respectively, with the weekly workweek dropping to 55 hours in 2013
  • applying collective bargaining rights only to farms with gross sales greater than $650,000 during the previous calendar year instead of all farms, providing for conflict resolution, and placing contingencies on strike or lock out actions
  • excluding farmers’ obligation to pay unemployment taxes on H-2A workers.

Although labor advocates considered these concessions a compromise, the Bureau

continued to oppose the Act. In Richard Witt’s opinion, “We have made concessions in the past and yet the Farm Bureau, who says they want to help farmworkers, does not propose or support any legislation to protect them.” He believes that the Bureau falsely uses the guise of the “family farm” to protect the interests of large, corporate farms who depend upon the current system of cheap labor for a comparative advantage.

It was his use of the word “system”, however, that made me question whether the debate is truly addressing the heart of the issue. Instead of single-mindedly focusing on legislation that addresses labor conditions, maybe labor interests and small farm interests should look towards creating systematic change to the overall food system in order to protect the interests of both farmers and farmworkers. For example, one farmer opposed to the Farm Bill stated, “We are price takers, not price makers” and as such, cannot be expected to take on these expenses at current prices. If so, existing and future legislation shouldn’t expect farmers to take on the entire cost of improving labor conditions. Instead, the increased cost of fair labor should be distributed along the food chain of production, processing, and consumption, alleviating the financial burden for farmers and making all food consumers responsible for fair agricultural labor. Until legislation is drawn up that includes both fair labor conditions and systematic reform to price setting for food products, New York should continue to protect small farmers by exempting them from some of the added labor costs included in the Act. This compromise would significantly improve working conditions on large farms where the majority of farmworkers are employed while simultaneously maintaining economic opportunity for small farms to grow and prosper in an increasingly competitive and global market.

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4 Responses to New York’s Farmworker Fair Labor Practices Act: A Look at Both Sides

  1. Jordan Wells says:

    Interesting commentary. This is a very promising conversation you’ve started. I offer the following comments in the spirit of collaboration.

    You’ve reproduced Farm Bureau’s talking points on expenses/effects without justification. To take one example, $200 million was never a reasonable estimate, as evidenced by the use of that number both before and after the massive 12/09 revisions to the bill. In fact, the FB never produced a shred of evidential support for this number. But the number has shock value and they have been marvelously successful in getting all sorts of publications to reprint it.

    Moreover, agriculture is not the only seasonal business out there, so its seasonality, while perhaps notable, does not underpin the exclusion of farmworkers. Rather, the denial of basic rights to farmworkers coincided with the exclusion of domestic workers, two groups of workers dominated by African Americans during the 1930’s when these labor rights were put into place. Thus, any industry would find reasons to continue to exploit their labor force if they had been gifted this unholy inheritance of Jim Crow-era racist policy, but these reasons must be understood as ex post justifications, else we would confuse ex post rationalization with ex ante policy underpinnings.

    Also on seasonality, lest we forget, year-round agriculture (see dairy, and to a lesser degree poultry, greenhouses, etc.) dominates agricultural revenue in New York State.

    Protecting the rights and dignity of all workers and supporting small farmers are two goals that consistent with one another, and the two groups should work together to the extent that each can support the other (note that the revised bill specifically accommodated this concern). Both are the little guy, and the “big guy” (read: Farm Bureau, for instance) will work to divide the two. However, the politics of legislating are tricky, and the Farm Bureau are pros at back-room deals and sleazy political maneuvers. Thus, the two groups’ needs should not be thought of as dependent conditions. Would we ask small farms to wait for farmworkers to have equal rights before developing greater economic security and opportunities (i.e. a package deal)? Of course not. Nor should farmworkers’ access to justice be subject to delay on account of small farms’ political and economic objectives.

    Without further ado, queue the onion farmer who shall not be named…

  2. Chris Pawelski says:

    Hi,

    Fist, I’m the farmer quoted in this piece regarding we are “price takers, not price makers.” Here are some of my standard points in reply to Richard Witt and his propaganda. This was a piece I wrote which appeared in HV Biz earlier this year:

    There is a bill before the state Legislature titled “The Farmworkers Fair Labor Practices Act” (S. 2247-B; A. 1867-A). There is a great deal of misinformation surrounding this bill as well as the issue of agricultural labor. Allow me to address a few of these issues.

    The primary proponent of this bill is a religious nonprofit organization called Rural and Migrant Ministry (RMM). The ministry acts as a self-appointed farmworker advocate organization because the overwhelming majority of farmworkers in New York state have neither elected nor chosen this organization or its designated leaders to represent them or speak on their behalf. Farmworkers do not attend their board or planning meetings and the handful that attend RMM’s annual Albany lobby day event are paid by RMM to be there. These facts were admitted by RMM Executive Director Rev. Richard Witt during his sworn testimony before the state Lobby Commission in 2001.

    RMM and its allies consistently claim that there are virtually no laws protecting farmworkers and they are “invisible” and ignored by society. The truth is there are roughly a dozen local, state and federal governmental agencies that enforce a plethora of laws that govern both the living and the working conditions of farmworkers in the state.

    Some of these laws, like the federal Migrant and Seasonal Protection Act (MSPA) only apply to farmworkers. Farmworkers are one of if not the most protected work force in the state. New York farmworkers earn, on average, more than $10 an hour. Most also receive free housing and all that it entails, including heat, electric and utilities. Many receive free cable or satellite television. Farmworkers in the state also benefit from a number of governmentally funded social-service programs that, in many cases, only exist for their benefit, including their own free government-funded health clinics, free day-care centers for their children (now 14 throughout the state) free child and adult migrant education programs, as well as their own free government-funded law firm which works only in their behalf. How does a farmworker compare with an urban resident working on the same wage tier when it comes to protections and programs?

    What we are talking about are five or six exemptions to state labor law. These exemptions, like the one for overtime pay, exist because of the production and marketing realities associated with farming. Farming does not take place in an enclosed building with a regulated environment. We have a limited time to plant and harvest. If overtime is enacted, farmers will have to cut hours during the growing season so as to afford the overtime at planting and harvest time which can’t be avoided. This may mean fewer overall hours and take home pay for farmworkers. And farmers do not control the prices we receive and cannot pass on increased costs. We absorb it or go out of business. Because of pricing and weather disasters, much of New York’s agriculture is reeling. In four of the past five years, my farm income was below the federal poverty line for a family of four. In 2009, my employees earned more than I did. Where would these self-appointed advocates and legislators who support them like the money to come from to pay for these mandates?

    I have no problem defending each and every one of the exemptions within the real world context of agriculture’s production and marketing realities. But I can’t, because the self-appointed advocates’ mantra is that these exemptions are “immoral” and “unjust.” They state that “there can be no justification for this unequal treatment. Attempts at justification of this exclusion are offensive.” Who assigned these organizations the authority to decide which exemptions are “just?” And many of these same exemptions that apply to farmworkers, like overtime pay, also apply to the employees of nonprofits and religious organizations. Yes, the very same organizations that are pointing their fingers at agriculture can legally “exclude” their own workers from receiving overtime. State legislative staffers also are exempt. Yes, the people who work for the people who want to end our exemption are exempt from overtime. The level of hypocrisy is astounding and they don’t have a leg to stand on to play the “moral” card.

    A number of farms in Orange County have switched from mono-cropping onions to growing a variety of vegetables. These farms supply the local farmers’ markets and the green markets in New York City. To grow those vegetables they have had to rely on a much bigger labor force than needed for the more mechanized onion farming. End the overtime exemption and they will be unable to afford their labor bill. They will go back to mono-cropping onions, if they can continue to farm at all. New York state’s unemployment and overtime exemptions for agriculture match the federal standard, making us competitive with neighboring states. If overtime is enacted you can kiss that local fresh produce goodbye as New York farmers will be unable to compete with New Jersey or Pennsylvania farmers who don’t have to pay it. And many farmworkers will lose their jobs. That will be the real world consequences of this legislation.

    The people who travel so far up the migrant labor stream, many year after year to the same farms, come here to work as many hours as possible to provide for themselves and their families back home. If the self-appointed advocates ever actually talked to farmworkers they would learn a common complaint is they aren’t receiving enough hours versus working too many. No one forces a person to work on a farm. If someone wants the benefits associated with factory work, they are welcome to work in a factory. But to attempt to apply the rules associated with factory work to agriculture is foolish public policy. Enactment of this legislation will undoubtedly lead to less locally produced food for our markets and a severely impacted upstate economy that is already hurting considerably.

  3. Julie Suarez says:

    I’m not certain who began this history, but it is well written and largely accurately reflects the positions of our farming community. What it fails to understand, probably because of a lack of collective history on this issue, is that the changes that have been adopted into NYS statute to add to protections for New York’s farm workers have been adopted with the support, not the opposition, of the New York Farm Bureau. All of the references to the statutes that have been enacted, were ones in which the farm community, engaging in a sincere dialogue with interested parties, agreed to. Our members actively supported the adoption of one of the nation’s only state anti-trafficking laws, in response to concerns about migrant farm workers, some of whom have showed up at the same farms for years and years but were showing up in increasingly difficult financial circumstances when they reached the farm. Our members also supported the elimination of the difference between the farmworker minimum wage and the state minimum wage in 1999 or so. All of this is public record – NYFB both issued memos of support to the legislature and commented in favor in the gubernatorial signing process. NYFB also supported tightening the standards for required sanitation in the fields, and is one of the leaders in supporting the farmworker housing program and the state housing code for farm workers (not many other states have either a low interest loan program or a sanitary code for farmworker housing). The drinking water provision was never something our organization fought against, and in fact most farms were already covered under existing OSHA regs to provide drinking water.

    The lesson from history should be that when the concerns raised are valid ones from the farm worker community, the employer community takes note. The key voices that are always lacking in this discussion are those of the workers themselves. When surveyed by Cornell University (not a land grant survey, a sociological survey) that NYFB had no knowledge of prior nor did we take part in identifying farm worker participants in the survey – farmworkers self identified learning english, health care, and housing and banking concerns as the primary issue. Workplace conditions were identifed by a mere 3% of the population suveyed (actual workers) as being something to be addressed. That isn’t a bad record. In fact, I would argue that alot of other industries – construction, restaurant, hotel and janitorial, would be hard pressed to have that same record of satisfaction with employment.

    Our farms have always been a gateway to the american dream. Don’t take that away, for either the farmers (and our local food supply) and the workers.

    • Venarae Lennox says:

      I am disgusted that the farmworker bill did not pass. Farmers receive many subsidies from the govt; yet talk trash about welfare folk. My son-in-law has been working on a dairy farm 7 days a week, approx 20 hrs a day. One worker only (himself). Just today, the cheap farmer told him he was going to let him go. The farmer has been caught before selling a sick animal for slaughter. My son in law has done everything he can do to keep the cows clean, give antibiotics and work w/outdated equipment. Yet today w/out notice in Nothern NY end of September the farmer decides to let him go. He has no unemployment insurance and does not even know where he can go. Prior to moving into the house the farmer had for his worker, my daughter and I had to go spray for roaches that were so bad in the house that they were crawling all over the outside of the house in broad daylight. Exterminator had to be called and had to come twice to eliminate the bugs. I went over and helped my daughter sweep up dustpan after dustpan of dead roaches. The farmer said they came w/the foreigners he had working there. He had those people living in deplorable conditions. He to date has not sprayed his barn and my daughter said the roaches just moved over there. This is at a well known dairy farm in LaFargeville, NY. Many farmers are just cheap. They should have to pay the same as any other business.

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