Changing work laws in New York
History of New York labor laws and initial legislation
by Sally Colby
Dr. Richard Stup, agricultural workforce specialist at Cornell University, said a lot has happened with New York State labor laws over the past few years. Resulting legislation has led to changes in the traditional farm workplace.
As he reviewed the need for labor laws, Stup referenced the 1911 fire at the Triangle Shirtwaist Factory in NYC. The incident was the impetus for labor movements and worker protection.
“During the Depression, the 1938 Fair Labor Standards Act [FLSA] was passed,” said Stup, adding that the act was controversial. “It included child labor restrictions, minimum wage, overtime, hours worked and required employer recordkeeping.”
Stup explained that overtime at 40 hours had a specific intention. “During the Depression, some people had work and lots of it,” he said. “Other people were out of work. Part of the policy of overtime was to drive employers to hire more people and work them fewer hours. The policy worked as it was intended.”
However, agriculture was exempt, partly due to seasonality and the fact that farms were smaller and had fewer hired employees. Even today, farm employees remain exempt from FLSA at the federal level.
The 1935 National Labor Relations Act (NLRA) created labor unions. Although the NLRA doesn’t directly apply to ag workers in NY, the state uses it as guidance. Most labor unions today are administered and overseen at the federal level.
“The union laws for farm workers in New York and those that existed in California for 50 years are state laws,” said Stup. “That’s important because other states don’t have a union law in place because farm workers are exempted at the federal level. There’s no possibility at this time, until a law changes, that would allow unions in other states.”
Stup said the effort for farm union formation in NY was a 40-year battle. One side pushed for labor reform and brought it up annually in the legislature. The NYS Senate continued to turn it down. “The 2018 election flipped the Senate, negating the Republican majority, and made it possible for the legislation to pass,” he said. “Senate hearings took place in 2019; the industry organized the ‘Grow NY Farms’ campaign. The aim was to have a seat at the table to get some compromises on the legislation they knew was going to pass.”
The Farm Laborers Fair Labor Practices Act (FLFLPA) became effective Jan. 1, 2020. Stup said one of the big changes after FLFLPA was enacted was making NY farm employers “regular employers,” and any exemptions previously in place would no longer be in effect. Stup added that the focus was on overtime and unions, but no one foresaw the other changes that would take place.
The legislation was rushed through, and at times was unclear. The terms “employee,” “farm laborer” and “farm worker” were used in the legislation without clear definitions, which became problematic. Because farm employers were now regular employers, disability insurance, unemployment and paid family leave were required as in other industries. Although farm workers were already receiving workers’ comp when appropriate, the legislation placed more regulatory burden on small farms.
The law went into effect in January 2020 except for the restraining order portion. “The state revisited this and came up with a new definition, which was a challenge,” said Stup. “‘Farm laborer’ shall mean any individual who works on a farm and is an employee under Article 19 of this chapter. Members of an employer’s immediate family who are related to the third degree of consanguinity (descended from the same ancestor) or affinity shall not be considered to be employed on a farm they work on out of familial obligation and are not paid wages or other compensation.” This is important because family members are exempt from overtime, day of rest and union participation regulations.
Under the original law, only the nuclear family – mom, dad and kids – were exempt while grandparents, uncles, aunts, cousins, nieces or nephews were not. “That isn’t how families in modern agriculture work,” said Stup. “Now, nieces or nephews and grandparents could be covered.” Stup added that there has to be a sense of “family obligation,” a term created by the NY legislature that doesn’t have a common or legal definition. Stup said the definition of family remains a gray area and predicts there will be court challenges in the future.
Compensation for family cannot be based on hours or days of work, but how else can people be paid? Employers must define “work responsibility” but it cannot show up on documentation directly for the compensation of family members. “Pay hourly when possible,” said Stup. “Track hours accurately, upgrade systems if necessary and be able to document hours and amounts paid. Keep contemporaneous time records – that means it has to be at the time for hours worked. You can’t go back and create them a month later.”
Most employers are covered in the overtime provision, including foreign guest workers. “One strategy was putting all employees on salary,” said Stup. “That doesn’t work. It isn’t a matter of how people are paid as to whether they’re exempt from overtime – it’s the status of the employee.”
One of the challenges is that the law didn’t set anything above 60 hours worked as overtime in stone. A wage board was formed, including a representative from Farm Bureau, a representative from the union organization FLCIO and a NY citizen chosen by the commissioner. “The board is to look at the threshold of overtime and only the threshold for agriculture and determine if that threshold should be lowered,” said Stup. “They can’t raise it above 60 hours and they can’t lower it below 40. But they can recommend anything between 60 and 40 hours.” Stup said during COVID, a series of four-hour hearings were held via Zoom. The board made a recommendation to the commissioner in December 2020, but due to the pandemic, the overtime threshold remained at 60 hours. The board will reconvene in December 2021, and Stup noted that the overtime threshold could change and potentially be as low as 40 hours.
One ongoing issue to watch is the state’s schedule for minimum wage increases. Long Island and Westchester farms are currently at $14/hour and will go to $15 next year. The remainder of the state, except for NYC, is currently at $12.50. “We’re on track to go to $15 for the rest of upstate New York,” said Stup. “We don’t know what the schedule is going to be, but the New York State DOL will tell us what the schedule is on October 1 of each year.”
Stup noted farms that were already doing a great job are now doing an outstanding job, and average farms are doing better because they had to pay more attention to retaining people. “If you don’t,” he said, “you won’t be in the people business for long.”
New York farmers can obtain additional information on the revised farm employment laws at agworkforce.cals.cornell.edu/regulations.