Farm Laborers Fair Labor Practices Act - Resources for Farmers

On January 1, 2020 the Farm Laborers Fair Labor Practices Act (FLFLPA) will take effect. New housing requirements for migrant farmers will take effect January 1, 2021. Below are some non-exhaustive resources. I’ve found Cornell’s Ag Workforce Development folks the most helpful.

FLFLP Basic Changes to Labor Law

• Farm laborers can unionize, but cannot strike. Employers cannot lockout.
• Time and a half (overtime) over 60 hours in one calendar week.
• Day of rest – 24 consecutive hours of rest in one calendar week.
• NYS Dept of Labor define “calendar week” as Sunday through Saturday.
• Workers can voluntarily agree to work their day of rest, but will be paid overtime on that day whether they have done 60 hours or not during the other 6 days of the calendar week.
• No farm labor exemptions for workers comp, disability insurance or paid family leave. (Disability Insurance covers workers who get hurt off the job and cannot work.) Some payroll deductions are allowed to fund premiums. Some part-time and seasonal exemptions are available (<20hrs/week, <175days/year or >20hrs/week, <26 consecutive weeks/year) https://agworkforce.cals.cornell.edu/2019/07/15/disability-insurance-paid-family-leave-and-farm-employees/
• Unemployment insurance is required for all farms whose payroll is over $300 per quarter.

Paid Family Leave Act

www.paidfamilyleave.ny.gov or 844-337-6303

Day of Rest Details

• Weather or work conditions can determine the day of rest, for example, a rainy Wednesday could be made the day of rest instead of a Sunday. Whenever possible the day of rest should be on the worker’s day of religious observance.
• NYSDOL plans to enforce the day of rest provision based on the calendar week.The table below shows the example where the worker has Sunday off then works 12 days and has the final Saturday off. This is compliant. 

Calendar week could be problematic in several ways. Workers with a 24-hour rest period extending from Saturday to Sunday will have that time split into two calendar weeks which will be non-compliant. Also, farms with a different payroll period will find it very difficult to track time off without switching to a Sunday-Saturday pattern.

Public Employment Relations Board (PERB)

https://perb.ny.gov/

PERB enforces the Public Employees’ Fair Employment Act of 1967, and now will cover the FLFLPA which now covers farm laborers. They do not know agriculture, and admittedly will have a learning curve for how to deal with cases coming out of farms. They encourage communication on any questions related to mediating or arbitrating disagreements with farm laborers:

• PERB is the primary resource for employers in a mediation process. PERB Office of Conciliation – 518 457 2690.

  

Department of Labor (DOL)

Call 833-NY-FARMS or www.labor.ny.gov/FarmLabor

A lot of details of how this law will be implemented are still being figured out by the DOL, particularly concerning H2A workers.

Room and Board

In general, room and board can be considered compensation, but cannot contribute to meeting minimum wage rates.  Follow this link for the Minimum Wage Order that describes the dollar amount ($) of housing that can be withdrawn from paychecks and count towards minimum wage: https://www.labor.ny.gov/formsdocs/wp/CR190.pdf

Cornell Agricultural Workforce Development Department

http://agworkforce.cals.cornell.edu

E-list, webinars, resource people, research reports from Cornell to support farm managers in building committed teams by applying the best human resources management practices to the agricultural setting.  Initial program activities include:

• Providing leadership and management development education focused on farm supervisors, middle managers, and owners
• Clarifying workforce regulations that apply to farms and increasing levels of compliance.
• Building consistent channels of communication and learning opportunities about agricultural workforce issues.
• Conducting research into workforce problems and challenges that confront agriculture.

Contact for FLFLPA: Richard Stup (res396@cornell.edu)

NOFA- NY

Policy Advisor Liz Henderson’s recent blog post describing the requirements under the FLFLP that may effect organic farmers. https://thepryingmantis.wordpress.com/2019/11/19/the-farm-laborers-fair-labor-practices-act-what-it-means-for-organic-farms/

Sexual Harassment Prevention

Unrelated to the FLFLPA is the requirement that all NY State employers provide sexual harassment prevention training for their employers and have a sexual harassment policy in place.  You are liable for how your employees treat each other as well as how they treat non-employees who come onto the business premises. https://agworkforce.cals.cornell.edu/regulations/sexual-harassment-prevention/

• Training videos that meet the minimum requirements https://www.ny.gov/combating-sexual-harassment-workplace/employers
• Trainings must be done on an annual basis starting October 9, 2018, and you should retain proof that your employees completed the training.

Upcoming Opportunites to Ask Questions

Here are two opportunities to have your farm labor questions answered by NYS Department of Labor Ag Specialists. If you were unable to attend any of the labor roadshows the week of Nov 18,  this is your chance to come, listen to the NYSDOL experts and then ask your questions. 

Specialists will be on hand to field questions regarding the new laws. They are here to help producers understand the impact of new laws. The DOL will provide information on compliance with the Farm Laborers Fair Labor Practices Act. The DOL will review how the changes will impact employer scheduling, payment of wages and recordkeeping. Updated materials will be available.

Additionally, we will have the opportunity to review a new tool developed by Dr. Jenny Ifft from Cornell's Dyson School that will help producers calculate overtime costs. Remember, farm labor laws will be changing as of January 1, 2020, so don't get left in the dark! This is a program for all producers who have employees on their payroll.

Labor Law Meetings

December 18
Cooperstown
Farm Credit East
7397 NY-80
 6:00 pm to 8:00 pm

December 19
Morrisville
Madison County CCE Office
100 Eaton St.
 1:00 pm to 3:00 pm

Although these meeting are free to attend, registration is required by noon on December 17. 

Register by calling Cornell Cooperative Extension Herkimer County at 315-866-7920, or email herkimer@cornell.edu with your information.

Or online: Farm Credit:
Cooperstown https://cnydfc.cce.cornell.edu/event.php?id=1001
Morrisville - https://cnydfc.cce.cornell.edu/event.php?id=1020

If you have questions, please contact Nicole at 315-867-6001 or nt375@cornell.edu