Worker rights arrive at the farm

 

Roman Chaidez drives a tractor past the heifer facility he manages for Walker Farms LLC in Fort Ann, N.Y. Joan K. Lentini photo

 

By TRACY FRISCH
Contributing writer

 

A Guatemalan man who works at a dairy farm in southern Washington County describes himself as tired.

He and another man milk 1,000 cows twice a day, seven days a week. Although he puts in long hours doing repetitive, dangerous work, he says he has not had a single day off in several years.
The day of rest -- a fundamental right that’s been legally guaranteed to most workers since the 1930s – is still not a right for farm laborers in most states. But that will change in New York at the beginning of 2020, when the state’s new Farm Laborers Fair Labor Practices Act takes effect.
The new law, passed by the Legislature in June and signed by Gov. Andrew Cuomo in late July, will extend to farm workers a series of labor rights that most nonfarm workers have enjoyed for decades, including the rights to a day of rest, collective bargaining, workers’ compensation benefits for those injured on the job, and overtime pay. For farm workers, however, overtime will kick in only after 60 hours are logged in a workweek, compared with the 40-hour threshold for most hourly workers.

Bills to extend labor law provisions to farm workers were first introduced more than 20 years ago but were repeatedly sidelined by opposition from farmers and their legislative allies, mainly upstate Republicans. But passage of New York’s new law became possible after Democrats won a large Senate majority in last year’s election for the first time in decades.

Supporters say the change corrects an injustice that dates from the Jim Crow era, when farm workers were exempted from the landmark labor laws that Congress enacted in the early 20th century. That exclusion has persisted until today in federal law and in most state labor laws.
“The exclusion of farm workers from fundamental labor protections dates back to a racist compromise made between President Roosevelt and Southern segregationist legislators over FDR’s New Deal,” said Yusuf Abdul-Qadir, director of the Central New York chapter of the New York Civil Liberties Union, at a state Senate hearing on the new legislation held in April in Syracuse.

“To win support for the newly created federal labor law, agriculture and domestic workers, primarily black workers at the time, were explicitly excluded from coverage,” Abdul-Qadir said.
But many farmers say the new law reflects a lack of understanding of the unique demands of farming. Farmers themselves typically work long hours. Large dairy farms are 24-7 operations, while crop farming often requires intensive labor to complete a harvest while conditions are ideal.
Along the state’s eastern border, where dairy farming remains a major economic force, many farmers fear the new law’s requirements will add to their costs at a time when many are struggling -- and perhaps put them at a competitive disadvantage with farmers in neighboring states.

At Walker Farms in Fort Ann, for example, workers already get at least one day off per week, but the new law’s overtime requirements will require either higher payments to the existing work force or added costs to hire additional workers.

“The largest challenge is going to be figuring out how we’re going to cover the additional costs of the labor,” said Larry Bailey, one of five partners who own the large dairy operation.
There does not appear to be any significant effort to extend the labor laws of Massachusetts or Vermont to cover farm workers, although in Vermont, the advocacy group Migrant Justice has pioneered an effort to push dairy processors to require better working conditions at their suppliers’ farms.

Raising the standards
The U.S. Department of Agriculture says there are more than 55,000 farm workers in New York, though other estimates peg the number as high as 100,000. A large majority of these workers now are immigrants, especially from Mexico and Guatemala, and a substantial number – more than half, according to national estimates – are believed to be undocumented.

Supporters of the new law say the increasing reliance on immigrant workers has created a situation in which farm laborer are more at risk of exploitation by unscrupulous employers. They also say it’s unfair to expect hired workers to put in the same long hours as farmers, who enjoy the benefits of being business owners, without overtime pay.

The 60-hour threshold for overtime was a compromise, as the Farm Bureau and many farmers opposed any overtime provision.

Jose Chapa, who for the past three years has coordinated a campaign for the new labor law on behalf of Rural and Migrant Ministry, is no stranger to farm work. Originally from the Rio Grande Valley of Texas, he traveled as a youngster with his family of migrant farm workers.

“There are good actors that treat their workers with dignity and respect,” Chapa said. “At the same time, there are bad actors that do not do the same. This law that will rectify years of injustice that have plagued those employees that work for those bad actors.”

Rural and Migrant Ministry, a statewide organization based in Poughkeepsie, organized a hearing last year at which farm workers from around the state told of difficult and sometimes abusive working conditions, including: logging long hours without meal breaks; going uncompensated for hours beyond a set number; a lack of medical care for workplace injuries; a lack of training for dangerous jobs; and crowded or unsafe housing.

Many agricultural workers live at the farms where they work, and New York’s new law expands the state sanitary code to cover workplace housing at farms.

Perhaps the most controversial part of the new law is its provision allowing farm workers to organize and to form unions to bargain collectively with their employers. But this right actually was granted by a court ruling in May, a month before the Legislature passed the new law.
In the court case, the Appellate Division of state Supreme Court ruled 4-1 that the exemption of farm workers from the state’s collective bargaining laws was unconstitutional. The ruling stemmed from a complaint filed in 2016 by Crispin Hernandez, a young worker from Mexico who was fired from his job at a large dairy farm in Lowville (Lewis County) after trying to organize his co-workers in pursuit of better working conditions.

In addition to codifying the right to form a union, the new law also gives farm workers protection to engage in other collective actions. These could be as simple as several farm workers going together to talk to their boss about a health and safety concern.

Before the new law was enacted, the farm owner could have responded by firing workers for complaining. Now farm workers are legally protected from retaliation and can have their cases adjudicated by the state Public Employment Relations Board. The new law covers all farm workers, including seasonal foreign workers hired through the federal H2A program. (Workers hired through that program are bound to a single employer, and the program has its own wage requirement, set for each state on an annual basis; the current H2A hourly wage for New York is $13.25.)

 

Roman Chaidez walks down a row of young cows, feeding them grain, at the heifer facility he manages at Walker Farms LLC in Fort Ann, N.Y. photo by Joan K. Lentini

 

‘Our employees want to work’
Bailey is one of three partner owners who are actively involved with the day-to-day operations at Walker Farms in Fort Ann. The dairy farm milks 1,150 cows and employs about 18 full-time workers and three part-timers.

Walker Farms hired its first Hispanic workers in 1995, early in the dairy sector’s shift to foreign-born workers. The farm now has employed immigrant workers long enough to have hired members of a second generation of some of the employees’ families.

“We have five employees who have been with us at least 18 years, and now their children are working for us,” Bailey said.

Because the farm already provides employees with one day off each week, Bailey said the new law won’t require any changes on that score. But the law’s overtime requirements will be a new burden, he said.

Echoing a point made by farmers and farm workers at the state Senate’s hearings on the issue, he said, “Our employees want to work more than 60 hours a week.”

Bailey said it would be difficult to avoid paying overtime by simply hiring more workers.
“For good workers who are willing to put in the hours on a dairy farm, the pool of workers is very small,” he said.

And the number of local people willing to take these jobs, he said, is virtually zero.
“There are a lot of jobs that are more appealing for better pay than working on a dairy farm,” Bailey said. “And unemployment, welfare and disability are more appealing than working 70 hours a week.”

Hiring additional workers also would drive up the farm’s costs because of the need to house more people and to provide heat and electricity for these additional workers, Bailey said.
In most cases, providing housing on the farm is a matter of convenience, Bailey said.
“Commuting back and forth is not always conducive” to farm work, given the early mornings and late nights involved in shift work at large dairies, Bailey added. “It may be a safety issue if they have their own vehicles.”

He also suggested that on-farm housing helps to avoid any friction over “differences in culture” between longtime area residents and farms’ immigrant workers.

 

No eight-hour days
At Ideal Dairy in Kingsbury, John Dickinson said the new law will add costs for dairy farmers. But unlike many of his peers, he seemed neither surprised nor alarmed by the law’s new requirements.

“I was fully aware that it was a matter of time,” he said.
Dickinson and his wife started a dairy farm with 100 cows in the late 1980s and consolidated a few years later with his father’s farm, Ideal Dairy, which had been one of the biggest dairy operations in the region until his father sold off his 500-cow herd in 1987. The farm, which had long been known for its breeding of Holstein cows, once had its own bottling plant and delivered door to door.

Today, Ideal Dairy has 2,500 cows. Dickinson runs it with three junior partners; the farm is owned and operated by the Dickinson, Getty and Grimaldi families.

Two years ago, Ideal Dairy built a new milking center with a rotary milking parlor where 72 cows can be milked at once. This allowed the operation to grow from 1,600 cows to the current herd of 2,500.

The farm milks cows three times a day, around the clock. Each milking takes about six hours. Employees work 12-hour days, 60 hours a week. Dickinson said they have down time between the milkings.

“Agriculture is not set up for eight-hour days,” he said.
He predicts that the gains in efficiency achieved with the help of the farm’s new milking center will allow the owners to pay the overtime required by the new law.
“Of course, not everyone can build a new facility,” he said.

Ideal Dairy has a work force of about 30 employees, some local and some foreign-born.
“Not that many people want to milk,” Dickinson said, describing the difficulty many dairy farmers have in recruiting and retaining local people willing to do farm jobs.

The new law’s day-of-rest requirement doesn’t change anything for Ideal Dairy, he said.
“We have never not offered a day off,” Dickinson said, adding that the farm is able to provide the days off by staggering employees’ schedules.

“We have five or six guys on a shift,” he explained. “The schedule for workers is five days on, one day off. Every day someone is off.”

But the debut of the farm’s new efficient milking center in 2017 demonstrated one of the dilemmas faced by farms employing foreign workers who often want to log as many hours as possible.

“When we first started in the new milking center, we were only milking 1,700 cows,” Dickinson recalled. “Workers started complaining because their hours were cut back.”

Their scheduled hours had been reduced because the new center allowed cows to be milked faster than in the previous facility. Dickinson said the farm’s owners worried their workers would move to other farms if Ideal Dairy couldn’t give them enough hours. So to retain the employees, he explained, “we ended up milking four times a day.”

“I have no idea if that was cost-effective,” he added.
Other farmers contacted for this story were unwilling to discuss the new law’s effects on the record. But local farmers stressed that workers who put in long hours are doing so voluntarily – and that workers who are unhappy are free to move on to other jobs.

 

Freedom to leave?
Richard Stup, director of the Cornell Agricultural Workforce Development Program, made a similar claim at a Senate hearing held earlier this year in Sullivan County as the new labor law was being crafted.

“Most farm employees are at-will employees who can move freely from one employer to another within agriculture and to other industries,” Stup said.

(One exception is the foreign workers who come to the United States through the federal H2A visa program for seasonal employment on a fruit or vegetable farm. These guest workers are only allowed to work on the farm that sponsored them.)

But supporters of the new law point out that as the labor force at the region’s dairy farms has increasingly shifted to immigrants, those workers – particularly if they are undocumented – may feel less free to walk away from jobs with poor or even abusive working conditions.

“How much freedom do workers that are not documented and don’t speak English have to leave?” asked Andrea Callan, a lawyer who is managing director of the Worker Justice Center. The center, based in Kingston (Ulster County), is the largest nonprofit organization serving farm workers in New York.

Because most farm workers live in housing provided by their employer, Callan and others have pointed out, those who quit or are fired become instantly homeless. And because many work in rural areas without their own vehicles or even driver’s licenses, their ability to leave is, in practice, quite constrained.

The Legislature passed a separate law this year that makes New York the 13th state to allow undocumented immigrants to obtain driver’s licenses. But until it takes effect on Dec. 14, people without a valid Social Security number will continue to be unable to legally operate a motor vehicle on public roads.

Farm workers without legal immigration status become vulnerable whenever they leave the farm, so advocates say it’s not unusual for foreign dairy workers to spend almost all their time on the farms where they work and live. In dairy farming regions like Washington County and Vermont that are predominantly white, Central American workers with brown skin and limited English are conspicuous. Agents of U.S. Immigration and Custom Enforcement have detained and interrogated undocumented dairy workers in Vermont when they went grocery shopping.

 

Debating overtime pay
Farming by its nature involves long works days, and many farmers say their own hours are excessive – especially at peak seasons. But supporters of the new law say it’s unfair to transfer the expectation of round-the-clock labor to a farm’s hired hands.

“The human capital that the worker is putting in is hard on the body,” Callan said, adding that some farm workers have been logging 90 hours a week at straight-time pay.

On dairy farms, long shifts are the norm year-round. In a 2016 survey of 205 Hispanic dairy workers conducted by Cornell University in nine central and western New York counties, the average work shift was 11.3 hours, and eight workers reported shifts in excess of 12 hours – even up to 15 hours. Of the farms surveyed, 21 out of 36 farms had 12-hour milking shifts.
The study also found that among dairy workers, the mean workweek was 67 hours, and 89 percent of the workers were on duty six days a week. A few reported working seven days a week. The workers surveyed were paid a mean hourly wage of $10.30, somewhat more than the state minimum wage of $9 an hour at the time.

On crop farms, work schedules vary according to the season and are contingent on the weather. Fruit and vegetable farmers say long hours become essential at peak times.

Dale Riggs, who started the Berry Patch in 1996 in a worn-out cornfield in Stephentown, stressed that point in her testimony to the state Senate about the new law.

“When your entire livelihood is dependent on what is produced and sold in four to six months a year, everyone on a farm has to work more than 40 hours a week,” Riggs said. “Most people in New York state do not know that 99 percent of the strawberries grown in the state ripen in a three- to four-week harvest window from about mid-June to the Fourth of July. Raspberries and blueberries are similar. We have very short periods of time when these crops mature.”
Riggs called the new law’s overtime pay provisions “particularly onerous” for crop farmers.
“I have a total of eight weeks during the summer to make 70 percent of my income for the entire year,” she said. “I work 120 hours a week during the summer. My employees understand that one heavy rain storm will turn ripe berries to mush … and that long days are necessary to get as much harvested as possible before a rainy period sets in.”

But Patricia Smith, a lawyer and former state labor commissioner, disagreed with the view of Riggs and other farmers.

Smith, now senior counsel for the National Employment Law Project, pointed out in her testimony that workers in other seasonal occupations, such as landscaping, construction and retail, already are entitled to overtime.

“A construction worker’s schedules are also seasonal and unpredictable and influenced by the weather,” she said. “I don’t think that the arguments against any overtime to farm workers stand up.”

Although the opposition to overtime requirements focuses on the direct costs to the farmer, Smith said farmers “are already paying for long working hours in the form of lost productivity” and because of the increase in injuries sustained by overly tired workers.
Farm work is one of the most dangerous and injury-prone jobs. Federal statistics show the agriculture, forestry and fishing sector has the highest rate of occupational fatalities per 100,000 workers. Between 2006 and 2016, 69 farm fatalities were reported to the state Department of Health.

 

Spreading the word
Now that the state has enacted labor protections for farm workers, supporters say the next challenge is how to inform this isolated population with limited mobility and uneven English skills about their newly attained rights.

The state Department of Labor’s Division of Immigrants and Policy Affairs is responsible for the H2A seasonal farm worker program and also pays visits to dairy farms. Chapa said the state agency was working on an educational booklet about the law that was expected to become available in September.

Other organizations also are working on creating educational material, and groups that work with farm workers around the state will also be involved in teaching this group of workers about their new rights.

Callan said that through the Worker Justice Center’s “large and robust outreach and education program,” staff members visit farm worker housing on dairy and produce farms throughout the Hudson Valley to inform workers of their rights and offer legal and advocacy services.
The center’s staffers typically visit dairy farms outside the growing season, unless they have a tip or a request from workers at a particular farm. The Workers Justice Center provides “Know Your Rights” training sessions, especially on labor and immigration rights, as well as health and safety sessions. If farm workers are hurt on the job, the center can assist them in filing a complaint with the Occupational Safety and Health Administration, Callan said.

Rural and Migrant Ministry has three worker centers: in Sullivan County in the Catskills; in Wayne County near Lake Ontario; and in Riverhead on eastern Long Island.

One of the challenges in implementing the new law is convincing workers that they can ask for their guaranteed rights without negative consequences. Although it may be illegal to retaliate against workers who assert their new legal rights, advocates say that in practice they may have little recourse and may fear being blacklisted or being perceived as complaining.

This summer, New York enacted an anti-retaliation law proposed by the state attorney general. This new law makes it illegal for an employer to threaten to call U.S. immigration authorities to report the immigration status of a worker or a worker’s family member. In addition, it bars any employer from using the immigration status of a worker or a worker’s family member to retaliate against that worker.

Some farm workers have reported that their employers made such threats when the workers indicated they wanted to leave or asked for improvements in working conditions.

Callan said farm workers who have living quarters on a farm have the right to enjoy their homes, even though they don’t own them. This right of tenants has been firmly established by the courts and has strong precedent in New York, she said.

So workers have the right to meet with advocates like those from her organization in their living quarters when they’re not working. Advocates cannot meet with workers while they’re out in a field or otherwise doing their farm work, but the workers have a legal right to have guests in their homes – even if their home is a room or apartment in a dairy barn.

 

A different model in Vermont
In Vermont, rather than waiting for legislative action to expand the rights of dairy farm workers, the advocacy group Migrant Justice has opted instead to enlist the power of milk purchasers to push for better working conditions at farms. The group’s Milk with Dignity program aims to sign up dairy companies that require their supplier farms to meet certain standards for their workplace conditions.

Leaders of Migrant Justice say they sought out a different model than New York’s new law in part because they believed the Vermont Department of Labor has limited capacity to investigate and enforce wage-and-hour complaints and abuses.

The Milk with Dignity program is modeled after an effort organized by workers in the tomato fields of Florida. There, the Coalition of Immokalee Workers was able to broker agreements with most major fast-food chains, which in turn required their suppliers to increase the piecework rate paid to farm workers harvesting fresh tomatoes – and to make various improvements in working conditions at the farms.

In Vermont, Migrant Justice was formed in 2009 in response to the death of a 19-year-old dairy worker from Guatemala whose clothes became entangled in a piece of equipment used to scrape the gutter of a dairy barn.

The group describes its Milk with Dignity program an example of “worker-driven corporate responsibility.” Elements of the program include: a farm worker code of conduct; worker-to-worker education; a third-party monitoring body; economic benefits for participating farmers; market consequences for farmers who don’t participate; and legally binding agreements between worker organizations and the corporations supplied by participating dairy farms.

In launching Milk with Dignity, Migrant Justice targeted the iconic Vermont brand Ben & Jerry’s. In 2017, faced with the prospect of a boycott and the associated negative publicity, the ice cream maker agreed to work with Migrant Justice.

Under that deal, the dairy farms that supply Ben & Jerry’s must enroll in the Milk with Dignity program. Participating farmers must meet a code of conduct that has been defined by dairy farm workers. These workers inform other workers of their rights through a worker-to-worker education program. A third-party monitoring organization, the Milk with Dignity Standards Council, checks farms to ensure the program’s requirements are being met.

In exchange for improving workplace and living conditions, Milk with Dignity farms qualify for a small premium from Ben & Jerry’s for their milk.

The program’s overall effects are significant, because 15 percent of the milk produced on Vermont dairy farms goes to supply Ben & Jerry’s. Of the farms that supply the company, 65 are now enrolled in the Milk with Dignity program. The state currently has about 700 dairy farms; the largest Ben & Jerry’s supplier in Vermont has 2,500 cows.

And through a Milk with Dignity pass-through, farm workers have received more than $200,000 in wage increases so that their pay meets the Vermont minimum wage of $10.78. (Like Massachusetts, Vermont is one of the many states that exempt farm workers from the state minimum wage.)

Enforcement is built into the Milk with Dignity program. A 24-7 hotline allows workers to report suspected violations, and the Milk with Dignity Standards Council, a nonprofit that’s independent of Migrant Justice, sends out auditors to do annual inspections of every participating farm. Auditors also investigate and work to resolve farm workers’ complaints about working and living conditions.

Farms that are deemed noncompliant face suspension from the program, which means the farm temporarily loses its Ben & Jerry’s premium.

Migrant Justice says it has been in exploratory discussions with other dairy companies it hopes will become future partners in expanding the Milk with Dignity program. As of mid-August, a spokesman said the group had identified the next dairy company it would attempt to enroll in the program but wasn’t ready to announce it yet.

 

Farm workers in Massachusetts
Massachusetts has few dairy farms still operating, so agricultural workers there are more likely to find seasonal employment on farms that produce vegetables or fruit. But as in most states, farm workers in Massachusetts are exempt from most the state’s labor laws, including the right to organize. The state sets a much lower minimum wage for agricultural workers than for other workers ($8 vs. $12), and it does not require farms to pay overtime.

“To me, this is just a carryover from the legacy of slavery and racism that keeps farm workers at a disadvantage and treats them as disposable,” said Rose Bookbinder, an organizer and co-director at the Pioneer Valley Workers Center in Northampton.

“Folks glorify the beautiful, local produce that is organic and sustainable but don’t think about the labor that went into producing it,” Bookbinder said. “We glorify the farm owners in children’s books. They’re often depicted as white men in overalls. But the majority of our food is produced with the labor of black and brown people who can barely afford to put food on the table.”
Earlier this year, a ruling by the Massachusetts Supreme Judicial Court clarified the agricultural worker exclusion from overtime pay. Fifteen workers had sued Chang & Sons Enterprises of South Deerfield for failing to pay overtime. Employees said their workweeks regularly exceeded 40 hours and sometimes reached 70 hours. The high court ruled that employees who packed bean sprouts at the hydroponic farm were entitled to overtime pay because they qualified as packinghouse and processing workers, rather than agricultural workers.

Andrea Schmid, an organizer and the co-director of the Pioneer Valley Workers Center, said the farm lobby in Massachusetts is looking to pass legislation to undo the effects of the court ruling.
In response to the decision, she said, some farm owners are capping hours at 40 hours a week to avoid the possibility of paying overtime. But that has been problematic for seasonal workers who depend on being able to log many hours at busy times.

On berry farms, she said, it’s common for workers to be paid a weekly stipend plus a piecework rate for the quantity of berries they pick. But with a stipend as their base pay, when they work upwards of 40 hours a week, their hourly wage can wind up working out to much less than the minimum wage, she said.

Although the wage issue is important, the Pioneer Valley Workers Center’s members recently have been focused more on another campaign to benefit farm workers.

“Our biggest focus is the driver’s license campaign,” Schmid said. “The majority of our members are farm workers who have to drive large distances to work. They are constantly being pulled over because they are Latino.”