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BusinessColumnistsCarrie Mason-Draffen

She may work for a farm but not be a farm worker

An administrative assistant employed by a wholesale greenhouse

An administrative assistant employed by a wholesale greenhouse may be due overtime because she does not work in the greenhouse. Photo Credit: Getty Images/iStockphoto / pixinoo

DEAR CARRIE: I have worked at a wholesale greenhouse for several years as an administrative assistant. The office where I work is separate from the greenhouse. The facility grows most of what it sells but also brings in some plants for resale. But I do not have anything physically to do with the plants. My job requires me to send invoices to customers, remind them to pick up their orders and help other office staff with their jobs. I like what I do, but I am upset that I don’t earn overtime despite the long hours I sometimes work.

After working 46 hours one week, I asked why I wasn’t paid time and a half for the extra hours. My employer told me that because the business is a farm, employees are exempt from overtime. Although the company says it’s a farm, I think it is far from that. It grows plants in a greenhouse. And they aren’t affected by the weather because they grow flowers and plants year-round using special lighting around the clock. That makes it a plant factory from my point of view.

In the spring, when the greenhouse is extra busy, we can work as many as 50-plus hours a week. The company offers overtime only after 55 hours. So when I work as many as 60 hours, I get paid overtime for just five hours. Please let me know if this practice is truly legal, and if it isn’t, what my co-workers and I can do to resolve the issue. — Overworked, Underpaid

DEAR OVERWORKED: You may indeed have a claim under state labor laws, said an employment lawyer. And the location of your job may be key.

Similar to federal laws, state laws exempt farm workers from overtime pay, said employment attorney Carmelo Grimaldi, a partner at Meltzer, Lippe, Goldstein & Breitstone in Mineola.

And the state wage regulations regarding farms include greenhouses, Grimaldi, said.

Under the law, “employed on a farm” includes “services performed . . . in connection with cultivating the soil, raising or harvesting any agricultural or horticultural commodity, and the operation, management, conservation, improvement or maintenance of a farm and its tools and equipment,” Grimaldi said.

But you said the location of your job is separate from the greenhouse.

“If it isn’t physically connected to the greenhouse, the argument could be made that she is not working at the farm because she is not working at the greenhouse,” he said.

As a result, he said, “it could very well be that she is not working on a farm or is covered by another wage order.”

And the wage regulations that could cover your job may very well mandate that you be paid overtime when you work more than 40 hours a week.

“Given your description of your duties, coupled with the lack of New York cases that have addressed this point, you have sufficient reason to approach the [Labor Department] and claim you are not employed on a farm,” Grimaldi said.

The answer is much simpler under federal law, which would exempt you from overtime based on statutes and court cases, he said. Under the federal Fair Labor Standards Act, “employed in agriculture” includes “farming in all its branches,” he said.

What’s more, “under federal case precedent, clerical work has been found to fall within this exemption if such work is ordinarily done by a farmer or on a farm.”

So what should you do? Call the state Labor Department at 516-794-8195 for more information.

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