Support Bill Providing NY Farmworkers the Right to Overtime and a Weekly Day of Rest

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[h/t to A.L. As most of you know, I am a strong supporter of labor rights. I also am a major foodie and recognize the people who grow and pick our fruits and vegetables do backbreaking and necessary work. They deserve better.]

The Justice for Farmworkers Campaign is very close to landmark legislation providing overtime coverage for New York farmworkers. Your support in the closing moments of the legislative session is critical. Please broadcast widely the e-mail announcement and phone script below (also attached) and take immediate action!

If you or your organization would rather fax a message, see the attached memo and feel free to use as much of our language as you like. The fax number for Senate Majority Leader Joe Bruno’s office is 518-426-6879.

Thank you for taking a moment to support an end to racist exclusions and a step toward justice in the fields.

** URGENT ACTION ALERT **

Bill Providing Farmworkers the Right to Overtime and a Weekly Day of Rest

Call Today and All This Week!
518-455-2800

Explanation:

The Justice for Farmworkers Campaign is on the brink of a major step toward the equal treatment of all New York workers. We really need your help to make it happen.

Seventy years ago, our elected representatives had the good wisdom to enact overtime protections that required work hours numbering greater than forty in a week to be compensated at one and one-half times the regular rate. Because southern legislators would not stand for putting African American workers on an equal footing with their white counterparts, however, farmworkers and domestic workers were excluded from overtime coverage. Since the New Deal, New York has perpetuated their exclusion from protections such as a day of rest per week.

We are urging the NYS Senate pass into law day of rest and overtime protections for farmworkers, as a step toward ending this shameful legacy of exclusion. Over many years, New York workers have come to expect a day of rest per week and overtime pay for hours worked beyond the forty-hour work week. With the passage of this bill, they will be able to approach farm work with that same expectation.

Please Call Today! 518-455-2800

If you do not know your senator, call Senate Majority Leader Bruno at 518-455-3191

When you get the operator, just ask for your Senator’s office. Ask for the Senator, but if he or she is not available ask for a staff person who handles legislation. Also, for those ambitious people wanting to do more than one call, or for people who don’t know their senator, here’s Senate Majority Leader Bruno’s #: 518-455-3191

Sample Script:

Hello, my name is [NAME] and I am calling from [YOUR CITY/AFFILIATION]

I wanted to call to ask you to support a bill that would provide day of rest and overtime protections to farmworkers. We must end these two shameful exclusions, which are rooted in racism and that deny basic rights to farmworkers. I understand there is an assembly bill number A11425-a, and I would like [SENATOR] to support a matching bill in the Senate.

Thank you for your time.

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2 responses »

  1. …. or as the self-appointed farmworker advocates refer to them in the rhetorically charged term, “the exclusions.”

    Day of rest

    A codified day of rest for agriculture is illogical and impractical due to the “nature” of the business. There is NO comparison to any other business for what a farmer faces. An entire crop, an entire year’s income, can be put at risk simply because it was not planted soon enough or harvested fast enough. No other business or industry faces this kind of pressure. During planting and harvesting farmers themselves do not take a day of rest. However, from the end of April through the end of July, which is the majority of the growing season, we invite anyone to drive through the black dirt area here in Orange County on a Saturday afternoon or Sunday. Few farmers and their farmworkers, if any, are working. Days of rest also occur naturally when bad weather occurs, breakdowns, etc….

    Overtime pay

    Again, farm work is not comparable to making “widgets” in a factory. A factory can more easily structure their work schedule according to the supply of materials and demand for their product, and adjust the work schedule accordingly so as to minimize more easily the increased costs associated with overtime pay. In agriculture the work frequently happens in brief periods of time (planting and harvesting) which is heavily dependent on the weather and the season or time of year, two things a farmer cannot control. In other words, I have a small window of time to plant and harvest and I have to work longer hours at those periods of time and nothing I can do can change that.

    What a farmer can do is cut back the hours during non peak periods so as to be able to afford the overtime pay during the peak periods which can’t be avoided. And here is where the self-appointed advocates do not take into account potential unintended consequences of what they are lobbying for. If the overtime exemption ends and farmers significantly cut back hours during the non peak periods between planting and harvesting to compensate for the increased labor costs that can’t be minimized during the peak periods, then this reduction in hours may lead to a real reduction in wages for farmworkers. So, in terms of pay earned eliminating the overtime exemption may (and probably will) lead to less overall pay earned in a season. This also might lead to less workers traveling to NYS, which will only exacerbate an already acute labor shortage.

    In the end, everyone loses, the workers actually have less take home pay and the farmers have less workers available. Farms may eventually go out of business, costing the farmworkers their jobs. But the self-appointed advocates, who have pushed for this, walk away paying no consequences for their actions.

    Collectively bargain

    This exemption for collective bargaining exists for a number of legitimate reasons. Due to the acute and ongoing labor shortage, farmworkers would have a potentially devastating advantage. A strike either in the middle of planting or harvest, exacerbated by an acute and ongoing labor shortage, could cripple an operation and quickly put the farmer out of business. It would be a distinct and unfair negotiating advantage. It also is a potential threat to our ability to continue to provide a safe and abundant food supply for the populace at large.

    Though the ability to negotiate collectively is not codified in state law, farmworkers can and often do negotiate various aspects of their living and working conditions as individuals or as groups on a farm by farm basis.

    Further, New York State is not a “Right to Work” state. As the National Right to Work Legal Defense Foundation Inc.’s website states:

    “You may not be required to be a union member. But, if you do not work in a Right to Work state, you may be required to pay union fees. Employment relations for almost all private sector employees (other than those in the airline and railroad industries) are covered by the National Labor Relations Act (NLRA).

    Under the NLRA, you cannot be required to be a member of a union or pay it any monies as a condition of employment unless the collective bargaining agreement between your employer and your union contains a provision requiring all employees to either join the union or pay union fees.

    Even if there is such a provision in the agreement, the most that can be required of you is to pay the union fees (generally called an ‘agency fee.’) Most employees are not told by their employer and union that full union membership cannot lawfully be required. In Pattern Makers v. NLRB, 473 U.S. 95 (1985), the United States Supreme Court held that union members have the right to resign their union membership at any time.”
    http://www.nrtw.org/a/a_1_p.htm

    One has to wonder if the above facts have been thoroughly explained to farmworkers, that being in a union isn’t “free?” That a portion of their paycheck will be deducted each week to pay for their union membership? Have they been told how much those potential union dues may be each paycheck? Have they been told that New York State isn’t a “right to work state,” therefore though they may not be required to be a union member, they still may be required to pay “agency fees” as detailed above?

    Or, has unionization been presented by the self-appointed farmworker advocates as a panacea that has no costs or potential drawbacks associated with it? Have farmworkers been given the entire picture? I seriously doubt it.

    Farmworkers in New York State, according to relevant federal statistics, earn roughly $9.50 per hour. Factor in the free housing and all that free housing entails (that includes generally free gas & electric, and free tvs and free DirecTV Para Todos service which I pay for on our farm), the free healthcare clinics all around the state, the free migrant daycare centers, the free migrant education programs, amongst other things, and they are earning a decent wage. And this is for, in most cases, TEMPORARY SEASONAL JOBS. They are providing for themselves and their families back home.

    Farmers like myself would love to pay our workers even more. We’d love to provide healthcare coverage. But, when I’m getting paid, dollar for dollar and not adjusted for inflation, the same price for a 50lb bag of onions that I was paid over 20 years ago ($6), and when we in this country spend less than 11% of our disposable income on food and farmers typically receive less than 20% of that retail dollar, farmers like myself are doing all we can. This is the contextual reality that the self-appointed advocates never deal with. This issue must be addressed within that reality, not from a void.

    What on earth will a union do for a farmworker? You can’t get “blood from a stone,” unless you take into account the union dues or “agency fees” that will be deducted from a farmworker’s paycheck each week to go into the pockets of the union.

    Unemployment insurance

    Farmers must provide unemployment insurance if they have a payroll of $20,000 or more in any calendar quarter, if the farmer employed 10 or more persons on at least one day in each of the 20 different weeks during a calendar year or the preceding calendar year, or if they are liable under the Federal Unemployment Tax Act. Fruit and vegetable farms tend to employ large amounts of people for a short amount of time. The threshold, originally established at the federal level, exists largely because of the seasonal and transitory nature of our labor force. Migrant farmworkers who follow the harvest season are going to employment in other states, and will not stay in New York collecting unemployment insurance.

    Some larger local operations, including those that pack onions year round, do meet the threshold and do provide unemployment compensation, which is appropriate.

    But, with the elimination of the $20,000 threshold exemption, does the government want to encourage persons that would normally travel to another region and work to instead stay put, not work when normally they would, and collect unemployment insurance? That strikes me as being bad social policy.

    Disability insurance

    New York is one of only six states that require disability insurance, which covers injuries that occur outside of the workplace and during non-working hours. I, and many other farmers, simply cannot afford to provide disability insurance for ourselves, let alone for our employees. And since I am the employer, I am not covered by worker compensation. I have to pay for my own health insurance, which is extremely expensive. To provide disability insurance to seasonal, temporary employees, defies logic.

    I have a friend that was a salesperson for over 20 years. Many years ago he bought 2 disability insurance policies. Recently he has been diagnosed with multiple sclerosis. There is no question as to the accuracy of the diagnosis. He clearly has it and the disease is clearly affecting his ability to work. Yet, both insurance companies are fighting him “tooth and nail” in regards to actually paying on the policy.

    Who honestly believes that insurance companies are going to readily and easily pay out off the farm injury related claims for persons who may or may not be documented and who migrate to multiple locations during the year?

    Finally, a little observation regarding hypocrisy on the part of these self-appointed advocate organizations:

    In the summer of 2003, after Bishop Pena of the Roman Catholic Diocese of Brownsville, Texas fired a number of his employees in response to their attempts to join a labor union, I contacted the various diocese and other large religious institutions (of various faiths) that primarily fund RMM et al, asking them where they stood on the issue of their employees joining a labor union. Most ignored and refused to respond to my repeated attempts to solicit their views/positions on this issue. Only the Episcopal Diocese of New York remotely attempted to answer my questions. Their spokesperson said:

    “The Episcopal Diocese of New York has a history of advocacy for the rights of all people and lives out this belief in advocating for the rights and dignity of all workers. The staff of the diocese is not unionized and to my knowledge it has never been an issue.”

    Translation: “Do as I say, not as I do.”

    It seems to me that if you are going to aggressively lobby for certain laws or conditions for workers outside of your industry, then you should be leading by example for employees in your own industry.

    If these religious institutions, including the Episcopal Diocese of New York are so keen on unionizing workers why don’t they start by unionizing the workers that work for their various organizations and affiliated institutions (churches, schools, hospitals, etcŠ)?

    It should be emphasized that religious based institutions, including their private schools and hospitals, have a long, rich tradition of being anti-union. Or should I say, they are pro-union, unless it is people that happen to work for them, that is. From the National Interfaith Committee for Worker Justice (NICWJ) website:

    “Engages Religious Employers: Religiously-affiliated non-profit institutions, such as hospitals and nursing homes, should model the highest standard of employer-employee relations. Unfortunately some religious institutions hire union-busting ‘consultants’ and engage in unethical, and sometimes illegal behavior toward workers when they attempt to form a union. NICWJ has developed resources to educate people of faith about this issue.” (http://www.nicwj.org/pages/aboutus.html)

    Maybe what’s motivating these institutions is what they might get out of the deal. Will union dues or “agency fees” be poured into the coffers of the Episcopal Diocese of New York and these other organizations that primarily fund and control the proxy organizations like Rural and Migrant Ministry and CITA? Maybe they aren’t so keen on their own employees unionizing because that will take money out of their pockets, versus putting it in.

    Their hypocrisy also involves overtime pay. Under NYS labor law non-profit organizations, at the time of their formation/incorporation, can elect to apply for an exemption (or “exclusion,” as the self-appointed advocates put it) to pay overtime. So, odds are, the large religious institutions as well as the individual churches that are prompting/backing RMM, NYSLRC and CITA and calling on farmers to pay overtime to farmworkers are probably exempt and not paying overtime to their own employees.

  2. Thanks for visiting my blog. Given the length of your comment and your involvement with this issue (I read you are member of the New York State Farm Bureau), you may want to post something about this on your own site rather than using my blog to promote your reactionary anti-union sentiments.

    The easiest way to answer your first set of comments regarding the incompatibility of unions and farming is these are the same excuses California farm owners gave in their opposition to the United Farm Workers (UFW) back in the 1960s. Four decades later and California is still producing plenty of agricultural products and many of the people picking the crops have collective bargaining agreements. In other words, the industry did not suffer the gloom and doom you describe.

    The second part concerns the Catholic Church and unionization. I share some of your concerns. It is always problematic when religious organizations of any denomination, non-profit organizations, NGOs, etc. clamor for workers’ representation and deny it to their own employees. The hypocrisy of this is important to challenge.

    However, in the case of New York City (where I live), the Federation of Catholic Teachers represents most lay teachers in the Roman Catholic schools. Also, many of the Catholic hospitals in New York are organized by the Service Employees International Union, Local 1199.

    ***SUPPORT EFCA THE EMPLOYEE FREE CHOICE ACT***
    http://www.aflcio.org/joinaunion/voiceatwork/efca/whatis.cfm

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