The Current Overtime Threshold for Farmworkers

On January 28, 2022, the New York Farm Laborer Wage Board made a landmark decision to lower the current 60-hour overtime threshold for farm workers to 40 hours. Workers start earning time-and-a-half pay for hours worked in excess of the OT threshold. Beginning in 2024, the threshold would decrease by 4 hours per week every 2 years, and reach 40 hours by 2032.

Upon final approval by the state Department of Labor Commissioner, New York would join California and Washington as one of only three states that are implementing the 40-hour OT threshold considered standard in other industries. Currently, four states (Hawaii, Minnesota, Colorado, and Maryland) have new laws that provide varying degrees of overtime for farmworkers. Two states (Oregon and Maine) introduced but failed to pass farmworker OT bills in 2021, though legislators are committed to trying again. On the federal level, Arizona Representative Raúl Grijalva’s House Resolution 3194, the Fairness for Farm Workers Act, aims to mandate farmworker OT nationwide. While it is supported by President Biden, to date the bill remains in committee with no action on the horizon.

Overtime Protections and Agricultural Exceptionalism

The history of OT legislation and the discriminatory labor laws against farmworkers — otherwise known as agricultural exceptionalism — provide important context for the current debate over farmworker OT hours. Federal OT requirements were introduced in 1938, when President Franklin D. Roosevelt signed the Fair Labor Standards Act and guaranteed nonexempt workers time-and-a-half pay for hours worked exceeding 40 per week. While the FLSA is credited with transforming the employment culture of the United States, certain workers, including farmworkers, were excluded from its protections and are still left out today.

This is not a coincidence. The statutory exclusion of agricultural employees, who to this day are considered among the most vulnerable workers in our society, is well understood to be a race-neutral proxy for excluding workers of color from benefits made available to white workers. Prior to the FLSA, farmworkers were excluded also from the benefits of the National Industrial Recovery Act, the Social Security Act, and the National Labor Relations Act. This history of discrimination in labor laws against farmworkers — agricultural exceptionalism — is rooted in slavery and is ingrained in our country’s legislative and legal framework.

Industrialized Agribusiness and OT Debates

Today, there are around three million farmworkers in the United States — two million self-employed and family farmworkers and one million hired farmworkers, many of whom are foreign-born and lack legal work authorization (which may lead to an undercount of their population). While numerically it seems like most American agriculture workers are employed by so-called family farms, this categorization obscures the reality of industrialized agriculture. Many of these “family farms” are actually incorporated, sizable businesses that make millions of dollars and employ numerous agricultural workers in labor-intensive jobs. This is part of a larger trend of increasing consolidation of farm production; while there are many small farms in the United States, most of our country’s agricultural production is concentrated within a small number of much larger farms.

This backdrop is important when considering the fierce opposition from the agricultural industry regarding efforts to increase OT protections. Industry members argue that lowering the OT threshold would cripple business. In fact, 70% of the testimony leading up to the New York Wage Board’s vote came from farm owners asking for the current 60-hour OT threshold to stay put. Some dairy farmers, for example, say they cannot pass on increased costs to consumers, since wholesale milk prices are regulated. Crop farmers who rely on seasonal labor worry they cannot compete with farms in other states if forced to pay higher overtime costs.

There have also been negative reactions from farmworkers themselves, who indicate that the policy may not have its intended impact. In California and Washington, where the 40-hour OT threshold was successfully passed, some farmworkers have experienced a decrease in income and had to supplement with other side jobs due to OT restrictions. A controversial Cornell University study of the potential impact of OT laws on NY agricultural production found that around 70% of H-2A workers (seasonal guest workers) would be less likely to do their current job if hours were capped at 40.

Nevertheless, organizations including the United Farm Workers have been strongly advocating for the 40-hour OT threshold. Proponents say that OT is fundamentally a health and safety issue, given that agricultural work is labor-intensive and grueling on the body. Additionally, the adverse economic impacts of a 40-hour OT threshold may be overstated. The aforementioned Cornell study has been criticized for its flawed methodology of convenience sampling of 40 farms the university already had ties with. Meanwhile, research from the University of Massachusetts Amherst estimates that a 40-hour OT threshold in Massachusetts would result in only a 1.6% increase in production costs.

The Next Step for Farmworker Labor Protections

The crux of the OT threshold issue is the fact that agricultural exceptionalism has long excluded farmworkers, primarily Black and Latino laborers, from basic rights and protections afforded to other workers. And the reality is that with a federal minimum wage of only $7.25 per hour and no right to OT pay, around 30% of farmworker families live below the poverty line. The growing dangers of compounding climate change threats place farmworkers at risk of extreme heat and exposure to dangerous pesticides. Many farmworkers live in cramped housing and lack basic benefits like paid medical leave, making them especially susceptible to COVID-19 infections. Farmworkers, especially unauthorized and H-2A farmworkers, experience incredibly high rates of wage and hour violations and are susceptible to employer retaliation when they speak up about basic workplace rights. During the pandemic, farmworkers became “essential” and were lauded as unsung heroes for helping feed the country — but deportation, of course, was still a possibility for undocumented workers.

The New York Wage Board’s decision to lower the OT threshold to 40 hours serves as both a beacon of hope and a depressing signal — a step forward in labor protections for farmworkers is happening, but intense resistance at every juncture makes widespread implementation in the near future unlikely. However, while California and New York pursued the legislative route for OT change, Washington’s use of litigation presents another possible avenue. The OT threshold was mandated for all farmworkers after the Washington Supreme Court found that dairy workers had a fundamental right to health and safety protections, including OT, in Martinez-Cuevas v. DeRuyter Brothers Dairy, Inc. Proponents of the 40-hour OT threshold may accordingly consider seeking a similar victory through the federal court system if the legislative path is obstructed.