Subject: The Farmworkers Fair Labor Practices Act – A.1223 (Nolan) / S.2721 (Alcantara)
Farmworkers are the backbone of New York’s massive agricultural industry. An estimated 80,000 to 100,000 migrant, seasonal, and dairy workers labor on New York farms.1 New York ranks among the top agricultural states in the country; it is the second largest producer of apples, snap beans and maple syrup, and is now the third largest dairy producer in the nation.2
And yet, for those who do the work of harvesting vegetables, picking apples and grapes, and feeding, cleaning, and milking herds of dairy cows, the pay is low, conditions are deplorable, and the work is grueling, dangerous, and at times life-threatening. But unlike other hourly workers, farmworkers are not entitled to fundamental labor protections. Due to a legacy of the Jim Crow era, farmworkers are excluded from the rights to overtime pay, a day of rest per week, and workers’ compensation when injured on the job. To make matters worse, farmworkers do not even have the right to engage in collective bargaining to try to improve their conditions.
That farmworkers are excluded from the labor laws of New York State is a disgrace. The Farmworkers Fair Labor Practices Act would correct this injustice. The New York Civil Liberties Union calls upon lawmakers and Governor Cuomo to enact this bill into law before the end of this current legislative session.
The denial of labor rights for farmworkers cannot be justified as a matter of law, nor as a matter of farm industry economics. Farming in New York is a multi- billion-dollar industry, making the state one of the nation’s agricultural leaders.3 And agricultural industry growth in 21st-century New York has been more vigorous than ever – for example, cash receipts from New York's agricultural exports tripled, from approximately $500 million in 2000 to $1.5 billion in 2016.4 Dairy production alone accounts for half of New York’s agricultural profits,5 and has steadily climbed in recent years due to the popularity of Greek yogurt -- a signature product of New York -- and a product for which consumer demand continues to grow.6 And all across the state, local farmers are capitalizing on the broadening market for locally-grown farm produce.7
What’s more, New York’s lawmakers and political leaders provide robust fiscal support to the state’s agriculture industry. For example, in 2012, PepsiCo and a German dairy company agreed to open a new yogurt factory in Batavia, New York with the state and Genesee County providing approximately $26 million in tax credits and other incentives in support of the venture.89 The state’s budget policies also favor New York farmers, and recent budgets have been no exception; Dean Norton, president of the New York Farm Bureau, praised the fact that the 2015-2016 state budget “raises the level of support for agriculture in this state” – to the tune of more than $70 million in funding for agricultural programs.10
Despite such windfalls to the industry, an expert in farm economics has pointed out that “there’s a persistent story that farming is on the edge of catastrophe in America and that’s why they need safety nets that other people don’t get. And the reality is that it’s really a very healthy industry.”11 Another expert who studies farmworkers and agriculture in New York, Professor Margaret Gray, has similarly observed that this narrative of the farming industry’s potential collapse is repeated by industry advocates every time legislation is introduced that would regulate farms and recognize the rights of farmworkers.12
This happened, as Professor Gray explains, in the late 1980s when new pesticide notification laws were proposed, in the late 1990s when sanitation legislation was introduced, in the 2000s during the effort to make the minimum wage higher than the federal minimum wage, and during the debates surrounding the most recent state-mandated minimum wage increases. Indeed, during the 2015-16 budget debates, the New York Farm Bureau lauded the omission of a minimum wage increase, citing “competitive disadvantage” as a result of labor costs.13 But quite to the contrary, Professor Gray affirms that farming has experienced and is expected to continue experiencing record-breaking profits and growth, a reflection of the farm industry’s flexibility, and its ability to adjust to changes.14
Yet while New York’s farms may be flourishing, most New York farmworkers are not. Despite long hours, farm work typically yields an income that is below the poverty level. According to a 2007 study by the Bard College Migrant Labor Project on farmworkers in the Hudson Valley, nearly one-third of those surveyed reported working at least 60 hours a week, without any overtime pay.15 Nearly 60 percent of those interviewed reported they earned little more than the minimum wage.16 The need for subsistence income is so great that for many farmworkers it “tends to be the underlying incentive for their decisions and often overrides other concerns about their personal well-being.”17 Farmworker income is so low that a substantial number of workers – nearly 40 percent of those surveyed for this report – had multiple jobs.18 Even with some supplemental income, however, nearly 90 percent of those interviewed had total incomes that were lower than the U.S. Federal Poverty Guidelines for a family of three.19
Beyond meager wages, farm work is often a punishing job that takes a serious toll on workers’ health and well-being. Much agricultural work is driven by seasonal harvesting cycles – that is, once a crop is ready for harvest, the work is virtually non-stop. Work on a dairy farm is also nearly a round-the-clock operation. A 2017 report by the Workers' Center of Central New York and the Worker Justice Center of New York includes the account of a worker who, for three years, worked on one of the largest dairy farms in the state.20 He describes what it is like to work twelve hours a day, six days a week on a farm with 4,500 milking cows. " 'Sometimes you cannot take your half hour break to eat lunch. If you take a break to drink water or go to the bathroom, you can fall behind.'"21 Routine verbal abuse, occasional physical violence and the inability to get a ride to the hospital, even when injured, were also described as common experiences.22
Contributing to the backbreaking nature of farm work, is the fact that many farmworkers are paid “piece rate,” based upon the units of produce picked or handled. This arrangement creates an incentive for farmworkers to push themselves beyond their physical limits for pay that is paltry considering the risk to their health. The Bard College study describes one such “piece worker,” who earned $18 for every 20 bushels of apples picked. In a work shift of between eight to ten hours he would pick between 60 and 100 bushels – this amounted to earnings of between $54 and $90.23 A bushel of apples weighs about forty-eight pounds – meaning that this worker picked as many as 4,800 pounds of apples during a day’s work shift.
To do their jobs, farmworkers also routinely risk their health and safety. According to the U.S. Department of Labor, farm work is one of the most dangerous – and most often fatal – occupations.24 As of 2011, the rate of injuries related to agricultural work was at least 40 percent higher than the average rate for all workers, and farmworkers are seven times more likely than other workers to die from work-related injuries.25 Sixty-nine farm fatalities were reported to the New York Department of Health between 2006 and 2015.26 The dangerous nature of farm work is related to many factors, including exposure to pesticides and other chemicals, intense physical strain, proximity to dangerous animals, and use of dangerous machinery. Notwithstanding the heightened risk of injury or even permanent impairment on the job, a farmworker is ineligible for workers’ compensation benefits.
How did it come to be it that, in 2018, farmworkers are still excluded from basic labor protections? History shows us that this statutory anachronism is a legacy of the Jim Crow era. When President Franklin Roosevelt advanced New Deal reforms broadening workers’ rights, Southern segregationists conditioned their support on the exclusion of farm laborers and domestic workers – who were at that time, primarily African Americans. In order to capture the Southern vote, the administration agreed to exempt these workers from federal labor protections, and the effect remains largely intact today, both on the federal and state levels. While states like California have passed their own legislation to protect farmworkers, New York has remained conspicuously silent for eighty years.
In 2010, New York took action to remedy this sorry legacy for domestic workers. The enactment of the Domestic Workers Bill of Rights gave these workers the right to fair pay, and basic protections of health and safety on the job. But New York’s farmworkers still labor in the long shadow of Jim Crow. Today issues of race and ethnicity are still implicated by the impact of this injustice – where African Americans once made up a majority of New York’s farm labor, today the workers left unprotected are primarily Latino.27
In 2015, Governor Cuomo announced the creation of a multi-agency Exploited Worker Task Force. Its website emphasizes, “Everyone deserves the full protection of the law regardless of immigration status. We will not tolerate worker exploitation period.”28 As of today, the exploitation of farmworkers continues unchanged.
The denial of fundamental workers’ rights to farm laborers is not only inconsistent with the values of New York State; it is also inconsistent with international human rights principles.29 It is long past time that New York lawmakers acted to end this injustice. The NYCLU strongly supports A.1223/S.2721 and urges the New York Legislature to pass this legislation.
1 Worker Justice Ctr. of N.Y., “Work Place Safety,” available at http://www.wjcny.org/program/flsnys-work-placesafety-project.
2 U.S.D.A., 2017 State Agricultural Overview, available at https://www.nass.usda.gov/Quick_Stats/Ag_Overview/stateOverview.php?stat....
3According to the state Department of Agriculture, the value of agricultural production in 2016 was over $5.4 billion. N.Y. State Dep't of Agric. & Markets, “2016 State Agricultural Overview,” available at https://www.nass.usda.gov/Quick_Stats/Ag_Overview/stateOverview.php?stat...
4U.S.D.A., “U.S. Agricultural Exports, State detail by commodity 2000-2016” (last updated February 8, 2018), available at https://quickstats.nass.usda.gov/results/38D86737-67B5-3BB5-A1C4-07FA1D2....
5 U.S.D.A., "2016 State Agricultural Review" (last updated Feb. 9, 2018), available at https://www.nass.usda.gov/Quick_Stats/Ag_Overview/stateOverview.php?stat....
6 U.S.D.A. Econ. Research Svc., “Dairy products: Per capita consumption, United States, 1975-2016,” (last updated Sep. 5, 2017), available at https://www.ers.usda.gov/data-products/dairy-data.aspx (U.S. yogurt consumption more than doubled from 2000-2016 due to the Greek yogurt boom); William Neuman, “Greek Yogurt a Boon for New York State,” THE N.Y. TIMES (Jan. 12, 2012), available at http://www.nytimes.com/2012/01/13/business/demandfor-greek-style-helps-f... (quoting Julie C. Suarez, then director of public policy for the New York Farm Bureau, as saying that “[t]he growth in dairy manufacturing, particularly in the Greek yogurt category, has really been a fantastic boon for New York dairy farmers.”).
7 American Farm Bureau Federation, “Farmers’ Markets Grow, Adapt to Changing Consumer Needs,” (May 14, 2014), available at http://www.fb.org/index.php?action=newsroom.focus&id=118.
8 Thomas Kaplan, “Another Yogurt Factory Planned for Upstate,” N.Y. TIMES (Feb. 24, 2012), available at http://cityroom.blogs.nytimes.com/2012/02/24/another-yogurt-factory-is-s....
9 The Batavia plant has since closed, but a new owner plans to re-open by 2019. "New Owner Plans to Re-Open Batavia Dairy Plant by 2019," WHAM Rochester NY (July 6, 2017), available at http://13wham.com/news/local/new-owners-plan-to-re-open-muller-quaker-pl....
10 “Local officials, business leaders react to 2015-16 fiscal plan,” TROY RECORD (Apr. 1, 2015), available at http://www.troyrecord.com/government-and-politics/20150401/local-officia... fiscal-plan.
11 William Neuman, “Farmers Facing Loss of Subsidy May Get New One,” N.Y. TIMES (Oct. 17, 2011), available at http://www.nytimes.com/2011/10/18/business/when-one-farm-subsidy-ends-an... (quoting Vincent H. Smith, Professor of Farm Economics at Montana State University).
12 Margaret Gray, “Testimony of Margaret Gray, Assistant Professor at Adelphi University, Department of Political Science, Adelphi University to the New York State Senate Standing Committee on Agriculture on Farmworker Rights,” (Mar. 1, 2010).
13 “Local officials, business leaders react to 2015-16 fiscal plan,” Troy Record (April 1, 2015), available at http://www.troyrecord.com/government-and-politics/20150401/local-officia... fiscal-plan.
14 Margaret Gray, “Testimony of Margaret Gray, Assistant Professor at Adelphi University, Department of Political Science, Adelphi University to the New York State Senate Committee on Agriculture on Farmworker Rights," (Mar. 1, 2010).
15 Bard Coll. Migrant Labor Proj., “Hudson Valley Farmworker Report: Understanding the Needs and Aspirations of a Voiceless Population” (2007) at 8, available at http://events.adelphi.edu/news/farmworkers/farmworker.report.pdf.
16 Id. at 44.
17 Id. at 4.
18 Id. at 46.
19 Id. at 46. 4
20 Carly Fox, Rebecca Fuentes, Fabiola Ortiz Valdez, Gretchen Purser, and Kathleen Sexsmith. 2017. “Milked: Immigrant Dairy Farmworkers in New York State.” A report by the Workers’ Center of Central New York and the Worker Justice Center of New York," available at https://milkedny.org.
23 “Hudson Valley Farmworker Report,” supra note 15 at 44-45.
24 U.S. Dep’t of Labor, Occupational Safety and Health Admin., “Agricultural Operations,” available at https://www.osha.gov/dsg/topics/agriculturaloperations/index.html.
26Carly Fox, Rebecca Fuentes, Fabiola Ortiz Valdez, Gretchen Purser, and Kathleen Sexsmith. 2017. “Milked: Immigrant Dairy Farmworkers in New York State.” A report by the Workers’ Center of Central New York and the Worker Justice Center of New York, available at https://milked.org.
27 “Hudson Valley Farmworker Report,” supra note 15 at 18-20.
28 "End Worker Exploitation and Employee Misclassification," available at https://www.ny.gov/programs/endworker-exploitation-and-employee-misclass....
29 United Nations Gen’l Assembly, “Universal Declaration of Human Rights,” No. 217 A (III) (Dec. 10, 1948), available at http://www.unhcr.org/refworld/docid/3ae6b3712c.html.