NY sets overtime threshold for farm workers. Has it worked in other states?

Note: This story has been updated to accurately list several states that lowered their overtime thresholds to 40 hours per week, including Washington, Oregon and Hawaii.

New York is set to allow farm workers to get overtime like other workers who go by a 40-hour week.

On Friday, state Labor Commissioner Roberta Reardon announced she accepted the New York Farm Laborers Wage Board’s decision to lower the overtime threshold from beyond 60 hours down to 40 by 2032.

How did labor advocates, farm groups react?

The decision, taken after a 2-1 vote by the wage board on Sept. 6, came as relief for labor advocates who saw this as a historic wrong under federal worker protections that left out farm workers.

“This is a long-established value in this country: When people work over 40 hours, that sacrifice should be recognized accordingly,” said Emma Kreyche, the director of advocacy, outreach and education for the Worker Justice Center of New York, a nonprofit that provides legal services to farm workers. “That’s all we’ve been asking for all these years is equality under the law.”

Representatives for employers see New York’s move as unfair and an inaccurate depiction of farming. They believe the agricultural industry has different work requirements than other sectors and lowering the workweek threshold adds costs on thin profit margins for farms.

“This is a difficult day for all those who care about New York being able to feed itself,” said David Fisher, president of the New York Farm Bureau, which represents farmers, in a statement. Fisher, the dissenting vote on the three-member wage board that made the change, said Commissioner Reardon’s decision "will make it even tougher to farm in this state and will be a financial blow to the workers we all support."

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Have other states changed farm worker overtime laws?

Washington, Oregon and Hawaii have lowered the overtime threshold to 40 hours per week for agricultural workers. California, the nation’s largest agricultural producer, phases its law in on two timelines, with the policy taking effect for farms with 26 or more workers in January. Smaller employers have until 2025.

Data is limited on whether these laws reduce hours for workers, or how it affects employers, under the 40-hour threshold.

What were the law's effects in California?

Advocates for farm employers have pointed to reports of workers losing hours under changes in California.

But that conclusion is disputed.

Since the California law began taking effect, work hours for farm workers have held consistent, Daniel Costa, the director of immigration law and policy research at the left-leaning think-tank Economic Policy Institute, testified in January to the wage board, citing National Agricultural Statistics Service data.

Wages paid by agricultural employers grew more slowly, and the number of agricultural businesses have held steady, Costa added, pointing to quarterly wage and employment census data from the U.S. Bureau of Labor Statistics.

As it stands, he said, farm work remains one of the lowest paid occupations in the U.S. New York's average annual wage in agriculture is about $39,000.

“The story out of California is that nothing has really changed,” Costa told the USA TODAY Network New York. While employers worried the change would cause farms to go out of business, he said, “none of that has happened.”

NY to provide tax credit to farmers to offset overtime burden

A 2021 study by Farm Credit East, a finance company that testified before the wage board in January, indicated lowering New York's overtime threshold to 40 hours would translate to $129 million in annual costs for farms, resulting in a 42% increase in expenses and a 20% reduction in income.

As New York farm workers move to the new overtime threshold, the state will look to soften the blow on agricultural employers by included tax credits in the latest budget.

These include:

• An investment tax credit increased from 4% to 20% to encourage automation.

• Extending the workforce retention credit through 2025, doubling to $1,200.

• A refundable credit to farm owners for overtime. The 118% refundable tax credit means the state will pay employers back for overtime worked, plus additional administrative costs.

The overtime credit is set to cost $184 million from 2024 to 2027, the state Division of Budget estimated. By the time the 40-hour work week is fully implemented in 2032, it will cost an estimated $153 million annually.

In a phone interview, Fisher, of the farm bureau, said many employers in other industries typically don't offer overtime. “We probably will be like many others and try to cut back hours,” he said, in order to forgo the tax credit.

Farm employers could cut overtime hours, allowing employers to hire more people, said Richard Stup, an agricultural workforce specialist at Cornell University’s College of Agriculture and Life Sciences. While this might not hurt employers as much, it could affect workers.

“Their weekly take-home pay is much less because they're working less hours and they're not receiving overtime pay,” he said.

The overtime credit still might help.

“It will help New York farmers be able to afford overtime,” Stup said. “Our farm employees in New York may not be hurt as badly as the ones on the West Coast.”

'Definition of structural racism'

Advocates for farm workers cite the 1938 Fair Labor Standards Act, part of President Franklin D. Roosevelt’s New Deal, that established the minimum wage, eight-hour workdays, weeks capped at 40 hours of work, and time-and-a-half of overtime pay for most occupations. It excluded agricultural and domestic workers — two occupations that employed large numbers of Black people at the time — in what historians and legal scholars have said was a compromise for segregationist Democrats to pass the law.

Workers, now predominantly Latino, still haven't received many of these protections.

Lisa Zucker, a senior attorney for legislative affairs at the New York Civil Liberties Union, said the agricultural industry has benefited from decades of labor done by people of color working long hours with no overtime.

“This is kind of what people talk about as the definition of structural racism,” she said. “It’s a policy rooted in racism that has become so baked into the system that generations of farmers have built their business models on this policy and don’t even see it.”

Christopher Potter of the Binghamton Press & Sun-Bulletin contributed to this report.

Eduardo Cuevas covers race and justice for the USA TODAY Network of New York. He can be reached at EMCuevas1@gannett.com and followed on Twitter @eduardomcuevas.

This article originally appeared on New York State Team: NY sets 40-hr work week for farm workers.What it means