Area farmers share fears about a lower overtime threshold

Jeff Toussaint talks about his farm and the potential lowering of the overtime threshold for its workers. On Thursday, Toussaint hosted a press conference at his farm in Medina, with speakers including, from left: Karen Howard representing state Sen. Pat Gallivan; state Assembly Member Steve Hawley, R-Batavia; state Sen. Ed Rath, R-Amherst; Assembly Member Angelo Morinello, R-Niagara Falls; Sen. Rob Ortt, R-North Tonawanda; Assembly Member Mike Norris, R-Lockport; and Sen. George Borrello, R-Sunset Bay. (Benjamin Joe / staff)

MEDINA — Jim Bittner, proprietor of Bittner-Singer Orchards, is a first-generation fruit farmer in Niagara County. His crops of choice are apples and cherries. They’re hard to manage, and they must be picked within a certain time, but they’re of high value.

Bittner says he’s looking into the future and picturing the day when he’ll be unable to produce either fruit. If what he sees coming is the new reality, his crops will be soybeans, corn and solar energy.

What Bittner sees is the New York State Agriculture Wage Board deciding to lower the threshold at which farms like his must start paying overtime to farm workers.

Presently, per the state Farm Laborers Fair Labor Practices Act of 2019, overtime kicks in after 60 hours in a week. The board is considering lowering that to 40 hours. Public hearings — three across the state — are in progress now.

When the 60-hour threshold was set in 2019 — there was no overtime rule previously — Bittner said most farmers did the only thing they could do: Try to limit laborers' hours to 60 per week. Problem is, he said, farm work does not always get done on a fixed schedule.

“I’ve paid overtime a couple of times for certain work during sweet cherry harvest,” Bittner said. “It’s a high value crop. If it’s going to rain tomorrow, I’m going to lose them all. They’re all going to crack and rot, so I got to get them off today. ... We do what we have to do.”

Medina-based farm operator Jeff Toussaint hosted a press conference at his farm on Thursday, aiming to bring attention to growers' concerns about a lower overtime threshold. He was joined by seven state legislators, all Republicans representing parts of Western New York, who have been warning about the consequences for farm operations — including, they and the growers say, the loss of farm labor to other states where their work week is not limited.

State Assembly Member Steve Hawley, R-Batavia, has been an especially vocal opponent of the overtime threshold. Having worked on his family's farm, and putting in up to 90 hours a week to help keep it running, he believes the regulators don't understand the business that they're tinkering with.

“Making hay when the sun shines doesn’t necessarily refer to hay. ... You work when you have to work," Hawley said. "Out in the fields, out in the orchards, whatever it is. Maybe even cleaning manure and spreading it. So many people, not here, but in Albany there’s a lot of manure spread.”

Hawley said he has introduced a bill in the Assembly to expand the Agriculture Wage Board from three to five members and allocate the new seats to the state Commissioner of Agriculture and Markets and a representative of the business community.

On the other side, Gov. Kathy Hochul, in her State of the State address last week, proposed tax credits for farm operators to offset their overtime expenses.

“The farmers who supply restaurant kitchens — and our own — need a lifeline as well. I’ve visited farms from Genesee County to the North Fork of Long Island, and life is tough, even in the good years,” Hochul said. “So we’re going to support them through a tax credit for the overtime hours they are paying, an increase in the Investment Tax Credit and an extension and doubling of the Farm Workforce Retention Credit.”

Bittner said he’ll believe it when he sees it in the state budget.

Toussaint, who grows string beans, apples, corn and soy, says he's worried about the effects of a lower overtime threshold on both his business and his employees.

“I’ve been farming all my life and I can’t remember a time that I’ve seen a piece of legislation introduced in Albany that’s been so universally unpopular," he said. "Most of our employees – this is off season, and most of them are back in Mexico waiting for the grow season — but I’ve asked them what they think of this law (and) if they were stuck to 40 hours a week, it was a pretty universal answer: ‘We’re going to look elsewhere for work.’"

“It’s not just here at Toussaint Farms. The same thing is true for many of our neighbors," Toussaint continued. "We’re very blessed to have people who’ve been with us for a long time. … The family that’s been with us since the early ‘90s? They’re home in Mexico, they’ll be there for a couple of months but, now that they’ve earned their citizenship, they’re now homeowners here in Medina. … By and large the H2A (migrant) workers that we’ve lost, it’s not because they didn’t like it here, but they wanted more hours.”

The Agriculture Wage Board is holding virtual hearings on the overtime threshold on Jan. 18 and Jan. 20. The link will be shared on the Farm Laborers Wage Board's website, https://dol.ny.gov/farm-laborers-wage-board-hearings.

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