Lisa Zucker

This holiday season, as you gather around the table for a humbler-than-usual Christmas feast or put out that glass of milk for Santa, please take a moment to recognize the farmworkers whose labor produced your bounty. Then, take another moment to try to comprehend why the men and women working these low-wage, physically grueling jobs are excluded from a basic labor protection that virtually every other hourly worker enjoys: the right to overtime pay for work in excess of 40 hours per week.

The reason for this injustice lies in the initial creation of wage and overtime laws more than 80 years ago. They were designed to exclude Black people from coverage by carving out an exemption for agricultural workers and domestic workers, most of whom were then African-American.

The exclusion remains today, allowing generation after generation of farm owners to create business plans based on artificially low labor costs without overtime pay.

Overtime pay is not a wage perk. It is a health-and-safety protection. That is why not even small businesses are exempt from providing it. Agricultural work is already one of the most hazardous types of employment, and frequent overtime — combined with compressed work schedules — can lead to serious injury, chronic fatigue, impaired performance and depression.

We know this firsthand. One of us has worked for 16 years as a farmworker in the dairy industry. The long hours, the lack of days off, the muscle aches and grueling schedule, mean little time for family and friends. And the extended hours in a dangerous industry leave you fearing you may die before your children grow up or grandchildren take their first steps.

The core needs and hopes of New Yorkers who work in agriculture are no different from New Yorkers who work in retail, food services or construction. Like all New Yorkers, they want a manageable work-life balance and protections for their physical and emotional health. They want to take care of their families.

They can’t without fair pay for overtime. Sixteen months ago, New York enacted the historic Farm Laborers Fair Labor Practices Act. Though it was hailed as an end to generations of discrimination for removing the exclusion of farmworkers from the right to collective bargaining, at the end of the day, lawmakers chose to maintain the system of inequality for overtime pay. Instead of requiring overtime pay after 40 hours, they set it at 60 hours a week and called for the convening of a wage board to determine the extent to which the OT threshold could be lowered.

Five wage board hearings were held from March through September. In addition to the scores of growers, farmworkers, and allies who testified, there were also doctors who spoke about the pain and injury caused by the nature of farm work. Accordingly, they recommended lowering the overtime threshold to the 40-hour norm that’s enforced throughout the economy.

As one doctor put it to the board, “[h]umans employed in agriculture pay a physical price for their work like no other industry in our economy...Justice and equity require that these essential workers be treated the same as workers in all other industries that are provided with overtime pay for less physically demanding work.”

It has been nine months since the first hearing was convened in person, in Albany, a mere three weeks before Gov. Cuomo shut down all nonessential businesses in the state. Because they were deemed essential workers, however, farmworkers continued to labor day in and day out, through COVID-19 outbreaks on farms, and even though many farmworkers live in close quarters in employer-provided housing, leaving them especially vulnerable to COVID.

This month, the wage board meets again to make its decision. And although many growers testified at the hearings that overtime pay would bankrupt them, it is probably safe to say that every wage board that has ever been convened has heard from business owners that the wages or benefits being considered will put them out of business.

Yet this wage board has always had an important tool at its disposal: it can recommend an overtime pay phase-in scheme. That is how the last wage board implemented the increase in minimum wages for fast-food workers.

It is our sincere hope that the wage board takes this opportunity to put an end to 80 years of injustice. The current system is unfair, unsafe and the product of a racist legacy that treats farmworkers like pieces of machinery. This year, as New Yorkers turn the page on 2020, let us also embark upon a new year in which New Yorkers who work on farms are treated with the justice and dignity they so richly deserve.

This piece was originally published in the New York Daily News