New York Farmworkers Say They Are Stiffed on Overtime

New York farmworkers and their advocates say that their employers are using loopholes to avoid paying overtime as required under a recent overhaul of state labor law.

Three years ago, New York state passed legislation granting farmworkers the possibility of overtime pay, a guaranteed day off and the right to form a union — among other benefits. The move represented a major shift in the state’s farm labor regulations, making New York an outlier nationally. Only a handful of other states have ever enacted similar legislation in the absence of federal protections for farmworkers.

But gains brought about by the Farm Laborers Fair Labor Practices Act (FLFLPA — pronounced “flippa”) are allegedly being eroded by some farm owners.

In interviews with Capital & Main, farmworkers and labor advocates said employers have limited work hours, misrecorded break times and paid workers off the books. 

Luis Jiménez, who works on a dairy farm in the Finger Lakes region, says that though the new laws have led to gains like a weekly day off, workers are not netting substantially more for their labor because of the workarounds. “We’re making about the same as before,” he says.

Overtime pay has historically been unavailable to farmworkers due to a deal that President Franklin D. Roosevelt cut with Southern lawmakers.

 
Jimenez has been regularly clocking more than 70 hours a week throughout his 18-year career on U.S. farms. In 2020, thanks to the new law, he received his first pay for overtime work.

It was the first year in history that any farm laborer in New York had been entitled to the benefit, which has historically been unavailable to farmworkers around the country due to a deal that President Franklin D. Roosevelt cut with Southern lawmakers in order to win their support for the sweeping federal labor laws he pushed through as part of the New Deal.

For Jiménez, 38, who is originally from Oaxaca, Mexico, the struggle to achieve the new standard has been hard fought. On top of his long workdays, the father of three is the co-founder of the Alianza Agrícola, an organization that advocates for the rights of agricultural workers in New York and works to educate farm laborers about those rights.  

Initially, Jiménez gravitated toward organizing in 2016 with a different goal in mind: to get New York state to reinstate driver’s licenses for undocumented immigrants. Given their rural surroundings, one migrant worker in the area told Capital & Main of errands that routinely cost $30-$70 in cab fare in the absence of access to driver’s licenses or a car.

Cows at a dairy farm in Ontario County, New York. In 2020, New York had nearly 3,600 dairy farms producing over 15 billion pounds of milk per year, making it the 4th largest state by dairy output.

By 2016, the New York State Legislature had been proposing and failing to pass different versions of FLFLPA since at least 1999. Meanwhile, another dairy farmworker named Crispin Hernández and two workers’ rights groups sued the state in 2016 for the right to unionize after Hernández had been fired for trying to organize his co-workers. Soon, Jiménez and the Alianza Agrícola also joined the movement to enact the long-stalled farm labor law.

In 2019, victories fell into place like dominoes over three consecutive months. In May, a state appellate court ruled in favor of Hernández and his co-plaintiffs, declaring unconstitutional a Jim Crow-era carve-out in state law that excluded farmworkers from unionizing. In June, New York passed the Driver’s License Access and Privacy Act, more commonly known as the “Green Light Law,” doing away with a post-9/11 provision that mandated a Social Security card to obtain a driver’s license. 

In July, exactly one month later, then-Gov. Andrew Cuomo signed FLFLPA into law after the Legislature had negotiated a key compromise with farm owners and lobbyists that modified earlier versions, raising the threshold for overtime pay from 40 to 60 hours. 

Farmworkers and advocates tell Capital & Main that it was a major improvement even if not the end goal. Jiménez and other farm employees say that some changes — particularly the weekly mandatory day off — have led to a better work-life balance for workers. He also notes that his employer increased his hourly rate slightly, to offset some of the losses from decreased hours.
 

“Very often, what we hear from [workers] is ‘My boss says we’re not allowed to work more than 60 hours.’”

~ Emma Kreyche, Worker Justice Center of New York

 
AJ Wormuth, the owner of Half Full Dairy in Onondaga County and a board member of the Northeast Dairy Producers Association (NEDPA), says this was an explicit approach on this farm to avoid losing workers in a tight labor market. The calculations were intended to be “revenue neutral” for his employees, who went from working about 70 hours to 62, including two hours of overtime pay. Wormuth is not Jiménez’s employer.

The changes have turned out to be cost neutral for Wormuth’s farm too. Even with each employee working fewer hours, they haven’t had to increase their labor force, meaning employee costs have stayed about the same. On the other hand, it has meant more rigid management across the farm. Whereas employees used to swap shifts with one another when they needed or wanted time off, now the farm more actively manages those changes so as to minimize overtime. 

Ismael Castellaños, a dairy farm worker in East Bethany, New York, washes manure and cattle feed off the bottom of his shoes.

After the law went into effect in January of 2020, says Jiménez, the mandatory day off was not the only reduction in their hours. Many employers, he affirms, “designed strategies to reduce our hours” to minimize or avoid paying overtime.

The first of those workarounds was the most straightforward — capping weekly hours and, in some cases, hoping that their workers were ignorant of the letter of the law.

“Employers have been very strategic in how they have been messaging this issue to their employees,” says Emma Kreyche, the director of advocacy, outreach and education for the Worker Justice Center of New York (WJC), one of the other plaintiffs in Hernandez v. State of New York. “Very often, what we hear from [workers] is ‘My boss says we’re not allowed to work more than 60 hours.’” FLFLPA does not limit a worker’s weekly hours to 60, but rather requires workers be paid time and half beyond that threshold.

“It’s incredibly challenging to both get the information out to workers, but even more so ensure that they are equipped to act when these rights are violated,” says Kreyche. Despite some policy wins in the last few years, she adds, “what hasn’t fundamentally changed is the degree of power and control that so many employers exercise over their workers.”

Other strategies that some of those employers are allegedly using to exercise that power are illegal.

Jiménez, the dairy worker, cites several examples. Before FLFLPA, if an employee started work 10-20 minutes before the official start of a shift, or finished late, the worker could expect to be paid for that time. Now, he says, the Alianza Agrícola’s constituents report that some of their employers refuse to pay that extra time even when the unpredictability of the work demands it. “Sometimes a cow falls over, or a newborn calf has to be fed at that moment, and you have to finish that before you can turn your duties over to the next shift,” he explains. Jiménez points out that this can translate to two to three hours of unpaid work over the course of a week.
 

“Every minute that an employee works, they need to be paid for. And New York law is not wishy-washy about that at all.”

~ Richard Stup, Cornell Agricultural Workforce Development program

 
He’s also witnessed changes in the ways breaks are counted by some employers. Since the overtime rule went into effect, breaks are sometimes docked excessively. Where some workers are allowed to take a half hour for lunch, he says, “The boss takes an hour off for it every day.”

Richard Stup, a specialist at the Cornell Agricultural Workforce Development program, says he has not encountered such practices in his organization’s work with farm owners and managers across the state, which includes giving advice on compliance with federal and state regulations and laws. “And if I did, I would tell the farm, ‘That’s just an absolutely egregious violation of labor laws,’” he emphasizes, regardless of the financial pressures and labor shortages facing farms.

“Every minute that an employee works, they need to be paid for. And New York law is not wishy-washy about that at all,” he adds.

“We hear the same stories too and we wish they would name names, so that somebody could take action against the bad actors,” says Wormuth, the dairy farm owner. Farm laborers and advocates tell Capital & Main that many workers are afraid of facing retaliation for coming forward.

On his farm, he says of situations when workers can’t leave mid-task, “We don’t cut anybody’s hours back because they work too long.” They are, he concedes, more stringent in their accounting now. “When they’re done with their shift, it takes them a half an hour to change their clothes and get ready to go home,” he says. Before FLFLPA, his workers clocked out after changing; now they’re required to clock out before.

Nonetheless, workers and advocates report additional, ongoing violations. Jessica Maxwell, the executive director at the Workers’ Center of Central New York (WCCNY), an organization that works with farmworkers to advocate for labor and health benefits — and the third plaintiff in the Hernández suit — has also noticed farms evading the law in how they track, classify and pay for their workers’ hours.

“We hear from workers who are on the books at 60 hours, and then they get paid in cash when they go over 60 hours to avoid compliance,” says Maxwell. 

AJ Wormuth, owner of of Half Full Dairy in Elbridge, New York.

Another practice she often encounters is farmworkers getting paid a weekly rate, regardless of the hours they work. She explains that staff from her team at WCCNY sit down with farm employees to work out their weekly hourly wage. Often they don’t receive even minimum wage, let alone overtime pay. “$500 a week still seems to be a common one,” she adds. 

For a work week of 60 hours — a number often cited by farmworkers and farm owners alike as typical — $500 a week translates to $8.33 an hour, far below the state’s current minimum wage of $13.20.

Those instances mirror the case of Robert Mein, who in 2020 became the first farmworker in the state to sue an employer, Smith Family Farms, asserting a violation of FLFLPA. He asserted that he regularly worked from 69 to 80.5 hours a week for a flat rate of about $277 a week, resulting in an hourly wage of $3-$4. Mein was seeking up to $36,000 in recovery. The case was settled for $15,000.  

Kary Zúñiga, 28, who works at a vineyard in Wayne County alongside her mother, father and sister, recently contacted WCCNY about another “strategy”: She and her co-workers have been reassigned to tasks that aren’t classified as farm work under New York law. Nonfarm work is subject to a stricter rule, under which workers are entitled to overtime after working 40 hours a week.

“They have us classified as agricultural workers even though we do everything,” the Querétaro, Mexico, native told Capital & Main, of being assigned to set up for events and wash dishes in her vineyard’s tasting room. In an information session for farm owners about upcoming tax breaks related to further changes in New York’s farm labor laws, New York State Department of Agriculture and Markets Deputy Commissioner Nicole Leblond explicitly called out tasting room operations as excluded from the farm labor classification.

Of instances like these, Maxwell of the WCCNY said, “None of them are getting overtime at 40 hours, and they all probably should be.”

“When politicians have to use a tax credit to subsidize a policy, it’s just bad policy.”

~ AJ Wormuth, dairy farm owner

In such cases and others, WCCNY encourages workers to file complaints with their employers or the state. And the group facilitates those discussions when the employer is open to it. The results sometimes fail to bring the employers fully into compliance, as when they convince an employer to increase a worker’s rate or weekly pay but it still doesn’t reach minimum wage. “They’re an interim victory,” she says.

“We try to help people understand, ‘Your work is valuable. You’re really valuable. And especially if there’s two or three of you, if you all walk off the job today, which you have every right to do,’” she adds, an employer may be willing to negotiate.

Zúñiga says overtime pay would be particularly welcome given the inflation bearing down on the U.S. economy and particularly the high price of gas. She drives 45 minutes each way to her job. Unlike at many farms, her vineyard does not provide housing to its workers, so she and her family live in a rental. Considering the increasing price of her commute and the icy upstate New York roads she traverses in the winter, she says she would probably take such housing were it to be offered.  

In January, a three-member farm labor wage board established by FLFLPA voted 2-1 to recommend that the overtime threshold for farmworkers be lowered to 40 hours, which would make more workers eligible for overtime. The dissenting vote came from a representative from the New York Farm Bureau, one of the state’s largest farm lobbying groups. The multipart hearing lasted over 14 hours, including testimony from dozens of farm owners voicing their opposition. The change would be phased in over a 10-year period.  

In an effort to mitigate the financial impact for farms, New York state approved a new, refundable tax credit equal to 118% of the overtime pay farms might pay out beyond any new thresholds. Even though the credit did not stipulate a new sunset period, Gov. Kathy Hochul and the Department of Labor have been subject to ongoing pressure from farm lobbying groups to reject the wage board’s recommendation. 

They cite, among other issues, cash flow concerns and increased reporting costs and responsibilities. Even Hochul’s acting lieutenant governor and the Democratic candidate for the permanent position Antonio Delgado has lobbied against it.

Wormuth, of NEDPA, and his organization’s members are opposed to the change. “When politicians have to use a tax credit to subsidize a policy, it’s just bad policy,” he says. New York farms, including dairy farms, currently receive other subsidies from the state in the form of tax credits, including the Employee Retention Tax Credit and the Investment Tax Credit, to offset the costs of labor and capital investments, respectively.

Ultimately, the wage board’s recommendation must be approved by the state’s labor commissioner, Roberta Reardon. Six months on, the wage board has yet to adopt and deliver its official report to the Department of Labor. Once that happens, Reardon will have 45 days to make a decision. In the meantime, Zúñiga and New York’s farmworkers wait.

 
Copyright 2022 Capital & Main.

All photos by Jesús Chapa Malacara.