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Disability Insurance, Paid Family Leave, and Farm Employees

The pending New York legislation to change farm labor laws (not yet signed by the Governor) will likely affect farm laborers’ eligibility for disability insurance and Paid Family Leave insurance. Farm laborers were exempt from these two requirements under the old laws but that will likely change on January 1, 2020 if the bill is signed into law before then. This situation is causing some confusion for farm employers at this time so I wanted to attempt to clarify.

Present Situation

At present, and continuing through the end of 2019, farm laborers are exempt from the state’s disability insurance and Paid Family Leave requirements. Agricultural laborers or farm laborers are defined in New York State’s Labor Law as “employees that perform duties in connection with the operation, management, conservation, improvement, or maintenance of a farm and its tools and equipment. Farm-specific duties include, but are not limited to, cultivating the soil; raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and fur-bearing animals, and wildlife; and handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, any agricultural or horticultural commodity.” In other words, farm “laborers” are those employees who are directly engaged in agricultural production. Other farm employees, such as retail farm stand employees, are not currently exempt and should have disability and Paid Family Leave already. Employers can provide these benefits to all of their employees, including farm laborers if they wish, but they are not required to do so.

Beginning January 1, 2020

If the farm labor bill is signed into law, farm laborers will no longer be exempt from certain benefits including the requirements for disability insurance and Paid Family Leave. Farm employers will need to work with a state-authorized insurance carrier to get disability insurance in place for employees that includes a rider for Paid Family Leave. A list of New York- approved insurance companies offering paid family leave riders can be found here. Both of these insurance benefits allow for some employee payroll deductions to fund premiums, in different ways. Disability insurance premiums can be paid in part by the employee (one half of one percent of gross wages up to 60 cents per week); the balance of the premium is paid by the employer. Premiums for Paid Family Leave insurance can be fully funded by employees, or the employer can elect to pay for the benefits.

For employers with part-time or seasonal employees it may be possible to obtain a waiver of paid family leave coverage if certain employees will not work enough to meet the minimum eligibility requirements. That is:

  • if they regularly work less than 20 hours per week and will not work 175 days in a year, or
  • if they regularly work 20 or more hours per week, but won’t be in employment for 26 consecutive weeks.

The farm employer must provide the waiver form to all employees who qualify for one. (The waiver is found at

More information on Paid Family Leave is found at Forms in eight languages are also found here.

By Richard Stup, Cornell University. Permission granted to repost, quote, and reprint with author attribution.
The post Disability Insurance, Paid Family Leave, and Farm Employees appeared first on Cornell Agricultural Workforce Development

Complying with Sexual Harassment Prevention Training in New York

All New York employers are required to have a sexual harassment prevention training policy in place since October 2018 and they are required to train all employees by October 9, 2019. See details in previous article.Stop Sexual Harrassment

Cornell Cooperative Extension Educators are planning a series of meetings and webinars to help farm employers learn about the requirements and resources they can use to get into compliance. See the detailed Flyer and registration information here: Sexual Harassment Prevention Training Flyer July 2019

We have prepared new, farm-friendly training materials for farm employers to use. These materials will meet the state’s training requirements. Please join the meeting to learn more.

Richard Stup, Cornell Agricultural Workforce Development


Dramatic Changes for Farm Labor Management in New York

Everyone in New York agriculture is aware of the recent, epic political struggle about the state’s farm labor laws. As of this writing, the proposed bill was passed by the New York Senate and Assembly but the Governor has not yet signed it into law. With the understanding that some things could still change, it’s time for us to start thinking about how to manage in a different legal environment. The essential goals for farm human resource managers remain the same:

  1. Operate a profitable, growing agricultural business.
  2. Provide high-quality, engaging, and safe jobs that can attract farm employees and provide them a good standard of living.
  3. Produce excellent, safe, and nutritious food for people who live both near and far.

We know the broad outlines of the changes that will likely take effect on January 1, 2020. Our challenge is to plan and manage to meet the goals above while complying with federal and (new) state labor laws. First, we need to understand the changes that will likely occur in state labor law, this article begins discussion of 3 major changes: overtime, collective bargaining, and a weekly day of Clock face with the words changing times as the Each of these issues is complicated and we will discuss more completely in later posts, but following is my summary of these major changes and initial management considerations.


New York farm employees will be eligible for overtime once they have completed 60 hours of work in a week. Overtime pay is defined as 1.5 times the regular rate of pay so a worker at $12/hour regularly would go to $18/hour for hours worked beyond 60 inside a week. Managers need to be thinking about the financial implications of this change on the business and on employees. It will be more important than ever to control which employees are scheduled for how many hours and to be mindful of hours worked as they approach 60 in each week. This may be a good time to upgrade your scheduling and time recording systems to provide the information, alerts, and accurate records you need. Consider each production process, system, and job in your business…where can you cut out waste and improve the efficiency and effectiveness of labor? Are there parts of your production process that could be outsourced to another business, or discontinued, while you focus your labor on crops and processes with the highest return?

What about salary pay, can a farm simply convert employees from hourly to salary pay to avoid overtime? With the farm labor overtime exemption changing in New York some farm employers might consider using other exemptions from overtime, but caution is required here. The federal Fair Labor Standards Act (FLSA) provides exemptions from overtime and minimum wage for certain workers and these federal guidelines are generally followed by New York. However, federal law limits the exemptions to only certain types of employees, mainly: executive, administrative, professional and outside sales employees. The New York State Depart of Labor provides an FAQ document that defines these types of employees in more detail. Some farm employees may qualify for this exemption such as those who manage a department and formally supervise 2 or more other full-time equivalent employees.  (Note that New York employers must meet the state minimums for weekly salary of $832/week in Upstate and $900/week in Long Island and West Chester.)

Collective Bargaining (Unions)

The Legal Information Institute at Cornell offers the following definition: “Collective bargaining refers to the negotiation process between an employer and a union comprised of workers to create an agreement that will govern the terms and conditions of the workers’ employment.” Farm employees will have the right to form or join a union in order to bargain as a group with their employer about their employment. This concept is incredibly complicated and quite new to most of us in agriculture so there will be much more discussion and education in the future about the meaning and implications of this change. Farm employees are not automatically unionized by this law, a majority of farm employees at a particular business must choose to sign up with a union in order to bargain collectively. If a majority of employees at a farm business choose to join the union, then the farm would be obligated to recognize the union and enter into negotiations to establish a union contract with the farm employees. Contract negotiations are complicated and beyond the scope of this post. There are some special limitations in the new law that will govern collective bargaining. Farm employees will not be permitted to strike or otherwise slowdown work on farms. Farm employers, on the other hand, are not permitted to “lock out” or prevent farm employees from working during the course of contract negotiations.

Broadly speaking, employees tend to unionize in work situations where they feel as if they have no “voice.” Essentially, that’s the purpose of a union, to move employees from a position of feeling like powerless individuals to a position of feeling like a powerful “collective” group of employees. Employers who wish to avoid having a union must focus on being great, progressive human resource managers. That means having policies and plans in the workplace that promote employee success, fair treatment, and employee “voice.” Great HR managers have a way of making employees feel engaged and committed at work, and of fostering constant and open communications. In contrast, overbearing, callous, and dictatorial managers breed employee frustration and open the door wide for unionization efforts.

Weekly Day of Rest

The new law will likely stipulate that farm employees must be allowed at least 24 consecutive hours of rest in each and every calendar week. This day of rest should be on the employee’s day of religious observance whenever possible, but it can move to another day in the week if crop or weather conditions prevent work. Employee’s can voluntarily waive their day of rest and choose to work but employers would have to pay the overtime rate (1.5X) for every hour they worked on their day of rest. This new requirement is rife with potential for confusion. Farm human resource managers need to adopt very robust employee scheduling and timekeeping systems that can manage day of rest requirements and provide documentation that it was consistently provided.

We’re embarking on a whole new era in farm human resource management in New York. We already know that employees will remain scarce and expensive, our challenge is to maximize the talent and productivity of every employee while maintaining excellent employee relationships and engagement. Excellent human resource management will emerge as not just as a distinguishing feature of the state’s best farm businesses, but as a requirement for farm business success.

By Richard Stup, Cornell University. Permission granted to repost, quote, and reprint with author attribution.
The post Dramatic Changes for Farm Labor Management in New York appeared first on Cornell Agricultural Workforce Development

5 Learning Opportunities in 2 Webinars for Farmers

NYSDOL’s Division of Immigrant Policies and Affairs (DIPA) is hosting a series of short, interactive webinars for farms. Register with DIPA to learn and ask questions about several important topics. See details below and find an event flyer at this link: 2019 Lunchtime Learning Webinars.

NYSDOL message follows…

The New York State Department of Labor’s Division of Immigrant Policies and Affairs (DIPA) is hosting FREE lunch time webinars for farmers. View and listen to a 20MINUTE PRESENTATION while submitting your questions via the chat box. Then we will take 10 minutes of questions! We will then move on to the next topic. Attend one, two or all the sessions!

11:30-12:00: Why Does DIPA Visit My Farm Every Year?
12:00-12:30: What do I need to Know about the New Sexual Harassment Training Requirements?

11:30-12:00: H-2A Program + NYS Labor Law Compliance = Successful H-2A Application?
12:00-12:30: H-2A Housing Inspections: What do I need to Know?
12:30-1:00: I Received a “Referral of Domestic Applicant,” What Do I Do Now?
Please E-mail to register for these important sessions.
For questions, call Caylin Gwise at 585-258-8855.

Social Security No-Match Letters are in the Mail

Many employers and payroll service providers are finding unwelcome correspondence in their mailboxes, Social Security “no-match” letters are back. A no-match letter means that the Social Security Administration (SSA) has found one or more employee records submitted by the employer that doesn’t match either the name or social security number that SSA has on file. Examples of these notices can be found on SSA’s website.  During the Obama administration, SSA stopped sending no-match letters altogether, but the Trump administration decided to resume them. Many employers will remember that during the Bush administration these letters were sent frequently and employers had a specific process to follow in order to get “safe harbor” from legal consequences while the issue was sorted out. Unfortunately, the Bush era “safe harbor” rules are no longer in effect and employers will need to navigate some uncertain decisions.  Image result for social security card

“Constructive Knowledge”

The problem for employers is that immigration officials and prosecutors consider an employer’s receipt of a no-match letter from SSA as evidence of “constructive knowledge” that an employee may not be authorized to work in the U.S. Essentially, “constructive knowledge” is a legal term indicating that a reasonable person, given the facts and information available to them, should be able to infer that the employee is not authorized to work. U.S. Immigration and Customs Enforcement (ICE) will ask for no-match letters when conducting records audits or other enforcement actions. Employers who knowingly employ individuals who are not authorized to work are in violation of current immigration laws and are in jeopardy for fines and criminal prosecution.

Proceed With Caution

Simply ignoring a no-match letter is not a good option because ICE could consider the employer to have “constructive knowledge” and to be willfully employing an unauthorized person. Furthermore, SSA does share information with ICE so immigration enforcement actions such as an audit could be prompted by no-match letters. However, employers shouldn’t just fire an employee, or take any other adverse employment action, based on receiving a no-match letter. A no-match letter alone is not an indication that an employee is not authorized to work in the U.S. In fact, the n0-match letter says it “does not address your employee’s work authorization or immigration status.” There could be a simple explanation for a mismatch such as a number getting transposed on a document or the person’s name changed, such as through marriage, but they failed to notify SSA. If an employer takes adverse action against an employee, such as firing, simply based on a no-match letter, then they could be sued for discrimination. The no-match letter states: “You should not use this letter to take any adverse action against an employee, such as laying off, suspending, firing, or discriminating against that individual, just because his or her SSN or name does not match our records. Any of those actions could, in fact, violate State or Federal law and subject you to legal consequences.”

Next Steps

Employers who receive a no-match letter will first need to create an account and login to SSA’s Business Services Online. Unlike the letters from years ago, the new letters don’t include the names and social security numbers that are in error, you have to log-in to SSA’s site to even learn which employees are referenced.

After the employer retrieves the list of employees with information that does not match SSA records, check business and personnel records to determine if a typographical error is the source of the discrepancy. If such an error is found, the employer can file a form W2-C to correct the information with SSA. More information about this correction process is contained in SSA’s Business Services Online and it should be completed with 60 days of receiving the no-match letter. Of course, it’s a good practice to verify that the correction took place and to document all employer actions.

If the employer finds no typographical or clerical error, then you will have to involve the employee in resolving the discrepancy. Inform the employee about the no-match letter from SSA and ask the employee to verify the accuracy of the information in your business records with the information found on their social security card. Instruct the employee to follow up directly with the SSA to resolve any discrepancies. Finally, document all of your business actions to show that you took reasonable steps to address and resolve the matter.

For more information, see the following related posts:

Employers with specific questions about dealing with no-match letters or other employment situations should seek legal counsel.

By Richard Stup, Cornell University. Permission granted to repost, quote, and reprint with author attribution.
The post Social Security No-Match Letters are in the Mail appeared first on Cornell Agricultural Workforce Development

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