December 7, 2021
The Honorable Kathy Hochul
Governor of the State of New York
New York State Capitol Building
Albany, NY 12224
Dear Governor Hochul:
We write to urge you to end the discriminatory, second-class treatment of farmworkers by directing the New York Department of Labor to phase in for farmworkers the same 40-hour overtime protections that most other laborers have enjoyed since the New Deal.
As President Biden said recently, “For too long—and owing in large part to unconscionable race-based exclusions put in place generations ago—farmworkers have been denied some of the most fundamental rights that workers in almost every other sector have long enjoyed, including the right to a forty-hour work week and overtime pay. … It is long past time that we put all of America’s farmworkers on an equal footing with the rest of our national workforce when it comes to their basic rights….”[1] Congress this spring held a hearing on this shameful history of denial of equal labor rights to farmworkers titled, “From Excluded to Essential: Tracing the Racist Exclusion of Farmworkers, Domestic Workers, and Tipped Workers from the Fair Labor Standards Act.” [2] Vice President Harris, as a U.S. Senator, co-sponsored the federal Fairness to Farmworkers Act, which would extend 40-hour overtime to farmworkers nationally under the Fair Labor Standards Act.
Fortunately, there is a growing wave of action in the states to finally end the unfair and racially discriminatory exclusion of farmworkers from this fundamental labor protection. In 2016, California approved 40-hour overtime for farmworkers and will phase-in that protection by 2022.[3] This year, Washington State—New York’s largest competitor for apple production—did the same, and will phase it in by 2024.[4] President Biden has stood with farmworkers in California and Washington in celebrating this long overdue justice and urged other states to follow their lead.
New York took a first step towards ending discrimination against farmworkers by passing the Farm Laborers Fair Labor Practices Act in 2019, extending long overdue protections such as collective bargaining rights, unemployment insurance, workers compensation, disability insurance, paid family leave, and a day of rest each week. The 2019 law directed the New York State Department of Labor to convene a wage board to make “recommendations as to overtime work for farm laborers.” The legislature provided that “the wage board shall specifically consider the extent to which overtime hours can be lowered below [sixty hours], and may provide for a series of successively lower overtime work thresholds and phase-in dates as part of its determinations.” And it specifically instructed that “The wage board shall consider existing overtime rates in similarly situated industries in New York state.”[5] The wage board now faces a year-end deadline to act.
Existing overtime rates in such similarly situated blue collar industries in New York state are in almost all cases 40 hours per week. For example, industries like retail, construction, landscaping, and resort hotels also face seasonal spikes in their labor needs but have all operated under 40-hour overtime for decades. Similarly, many industries from emergency services to hospitals must staff their operations over long hours, yet they have operated successfully under 40-hour overtime protections for many years.
We urge your administration to ensure that the Department of Labor seizes this opportunity to follow Washington and California by fully equalizing overtime protections for farmworkers. A phase-in of 40-hour overtime, as these other states have done, will allow industry adequate time to adjust.
Sincerely,
A Better Balance
Agricultural Workers United
Agricultural Workers United — NY (UFCW/RWDSU)
Alianza Agrícola
Alianza Nacional de Campesinas
Center for New York City Affairs at The New School
Centro de los Derechos del Migrante, Inc.
Coalition For Economic Justice
Economic Policy Institute
Empire Justice Center
Equal Rights Advocates
Hispanic Federation
Justice for Migrant Women
LatinoJustice PRLDEF
Legal Services of Central New York
Local 338 RWDSU/UFCW
Make the Road New York
National Center for Law and Economic Justice
National Domestic Workers Alliance
National Employment Law Project
National Employment Lawyers Association
New York Civil Liberties Union
New York Immigration Coalition
New York Working Families Party
Oxfam America
Retail, Wholesale and Department Store Union, RWDSU
ROC United
Rural + Migrant Ministry
UFCW District Union Local One
UFCW Local 888
Worker Justice Center of New York
Workers Center of Central New York
Workplace Fairness
32BJ SEIU
cc: Hon. Roberta Reardon, Commissioner, New York State Department of Labor
[1] The White House, “Statement by President Joseph R. Biden, Jr. in Support of Washington State’s Overtime Bill for Farm Workers” (May 11, 2021). Available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/05/11/statement-by-president-joseph-r-biden-jr-in-support-of-washington-states-overtime-bill-for-farm-workers/
[2] “From Excluded to Essential: Tracing the Racist Exclusion of Farmworkers, Domestic Workers, and Tipped Workers from the Fair Labor Standards Act,” Hearing before the U.S. House of Representatives Education and Labor Committee, Workforce Protections, Subcommittee (May 3, 2020). Available at https://edlabor.house.gov/hearings/from-excluded-to-essential-tracing-the-racist-exclusion-of-farmworkers-domestic-workers-and-tipped-workers-from-the-fair-labor-standards-act
[3] Calif. Dep’t of Indus. Relations, Overtime for Agricultural Workers. Available at https://www.dir.ca.gov/dlse/Overtime-for-Agricultural-Workers.html
[4] Wash. RCW 49.46.130(6). Available at https://app.leg.wa.gov/rcw/default.aspx?cite=49.46.130
[5] N.Y. Labor Law § 674-a.
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