OT threshold for farmworkers lowered to 40 hours per week

Farmworkers could potentially have an easier time qualifying for overtime pay after New York State, following two years of review, lowered the OT threshold to 40 hours per week from the current 60 hours.

State Labor Commissioner Roberta Reardon has adopted the recommendation of the Farm Laborers Wage Board to reduce the trigger point under which time-and-a-half must be paid to 56 hours on Jan. 1, 2024, from the current 60 hours per week. The threshold will then fall to 52 hours at the start of 2026; 48 hours in 2028; 44 hours in 2030 and finally 40 hours in 2032.

Farm employees only became eligible for overtime pay in 2020 after the State Legislature and then-Gov. Andrew M. Cuomo approved the Farm Laborer Fair Labor Practices Act of 2019.

Reardon said Friday that requiring farms to pay time-and-a-half after 40 hours of work at the end of a 10-year phase-in period is “the best path forward to ensure equity for farmworkers and success for agricultural businesses.”

The governor and legislature do not have to approve the change for it to go into effect.

Still, on Tuesday, four Assembly members, all part of the Democratic majority, called on Gov. Kathy Hochul, also a Democrat, to delay implementation of the lower overtime threshold and to make an exemption for small, family-owned farms.

Two of the lawmakers predicted few farms would benefit from a new refundable tax credit designed to compensate for the increased overtime costs.

"The decision that has been made needs to be suspended," said Assemb. Marianne Buttenschon (D-Utica/Rome).

Hochul spokesman Justin Henry on Tuesday urged farmers, their employees and others "to provide feedback on the regulations when the [60-day] public comment period opens later this month."

Last week, Hochul said the refundable tax credit would "offset the financial impact for our farmers" of the lower OT threshold. "The farm community will not be hurt," she said.

The wage board voted last month 2 to 1 to recommend a lower threshold. The board had held 14 public hearings and meetings since 2020.

In the hearings, most farmers testified that if the threshold was changed, they would limit workers’ hours so as not to pay overtime.

Some farm employees testified that they want to work as much as possible to send money to family in foreign countries. They said their hours have been reduced since OT pay after 60 hours was instituted three years ago.

“I don’t want to make less money,” said Moises Penaranda, who has tended flowers and plants since 1994 at Kurt Weiss Greenhouses Inc. in Center Moriches.

He told Newsday in November that his earnings allow him to help family, friends and neighbors back home in Ecuador.

Another farmworker, Juan Antonio Zuñiga, of Riverhead, supports the new OT threshold. “Farmworkers, like any other workers, deserve to be paid for the extra hours of work,” he said.

Farmers contended that OT regulations should not apply to their employees because they work seasonally.

New York State farms are put at a competitive disadvantage with farms in Pennsylvania and other states without an OT requirement and a lower minimum wage, said Robert Carpenter, administrative director of the 550-member Long Island Farm Bureau.

“Farmers treat their workers tremendously,” he said on Monday. “The workers come back year after year” from their home countries.

He continued, “This decision [by the state labor commissioner] is going to impact the farm community because at the wholesale level you just cannot pass along the higher costs to customers. This makes it much harder for us to compete.”  

By James T. Madore

james.madore@newsday.comJamesTMadore

James T. Madore writes about Long Island business news including the economy, development, and the relationship between government and business. He previously served as Albany bureau chief.