(Note, an earlier version of this article appeared first in the NEDPA newsletter, the following article is updated from that version.)
New York’s state government enacted the Farm Laborer Fair Labor Practices Act (FLFLPA) in 2019 which contained major changes to farm labor law such as overtime and the right to collective bargaining. FLFLPA certainly contained confusing and difficult language that even state agencies such as the Department of Labor struggled to interpret in the context of real-world farm employment scenarios. Two major farm organizations, the New York Vegetable Growers Association and the Northeast Dairy Producers Association, believed the legislation was essentially unworkable and successfully filed for a temporary restraining order in federal court. The judge granted the temporary restraining order at that time but it has now been lifted.
Meanwhile, the state government passed additional changes to the state’s farm labor laws in the FY2021 Budget Act which was signed into law in April. These changes sought to correct some of the problems in FLFLPA. The changes are retroactive to January 1, 2020, so they are in effect. In this article I will attempt to explain the changes in the budget act amendment that flow from the definition of “farm laborer” and its effect on overtime and day-of-rest.
The original FLFLPA labor law did not include a definition of the term “farm laborer.” “Farm laborer” is now defined in this way:
“‘Farm laborer’ shall mean any individual who works on a farm and is an employee under article nineteen of this chapter. Members of an employer’s immediate family who are related to the third degree of consanguinity or affinity shall not be considered to be employed on a farm if they work on a farm out of familial obligations and are not paid wages, or other compensation based on their hours or days of work.”
Essentially, this definition says “farm laborer” includes everyone who is employed on a farm except immediate family members of the owner and only under two particular conditions. Immediate family “to the third degree of consanguinity or affinity” means: parents up to grandparents, children down to grandchildren, brothers, sisters, nieces, nephews. It does include “in-laws” reaching out the same distance and similarly “step” relationships. First cousins, great uncles/aunts and more distant relations of the owner are at the fourth degree of consanguinity and beyond, they are not included as immediate family.
Just being related to the owner is not enough to be treated as a family employee under this “farm laborer” definition, the employment relationship must also meet two other conditions. First, the family member must work on the farm out of “familial obligation.” This is a tough one, my search for a legal definition of this term was unsuccessful, and even a common definition is not readily available. It will be necessary for the Department of Labor to provide a clear definition of “familial obligation,” how it applies to farm family employees, and how employers should document or confirm this part of the relationship.
The second employment condition for farm family members to be excluded from the definition of “farm laborer” is that they “are not paid wages, or other compensation based on their hours or days of work.” In other words, their pay must come in a form such as salary, stipend, or allowance that is not directly tied to the hours or days that they work.
So, if a farm employee is a close family member of the farm owners, they feel or are obligated to work at the farm for family reasons, and they are not paid wages by the hour or day, then they are not considered a “farm laborer.” Why is this important? Because additional changes in the law now specify that the overtime and day-of-rest provisions of FLFLPA only apply to those employees who are “farm laborers.” In the original FLFLPA language, farm “employees” were eligible for overtime pay if they worked more than 60 hours in any calendar week; “employee” is now changed to “farm laborer” in the amended language. In the original FLFLPA language creating the weekly day-of-rest requirement, the term “farm laborer” was already used. So now, overtime and day-of-rest apply only to “farm laborers.” Those family members who can meet the definition of family described earlier are not “farm laborers.”
There are other important changes to farm labor laws that I will discuss in future articles. For now, farm managers need to consider this change in the definition of “farm laborer” and reflect on how it applies in your business. Consider especially family members of the farm owner(s) and whether they will fit the family exclusion from being “farm laborers.”
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By Richard Stup, Cornell University. Permission granted to repost, quote, and reprint with author attribution.
The post Changes to New York’s Farm Labor Laws That Affect Overtime and Day-of-Rest appeared in The Ag Workforce Journal
