Volume 15, Issue 11
Overtime for Agricultural Workers
Agricultural workers are generally exempt from overtime pay provisions of the federal Fair Labor Standards Act, however in recent years there has been activity in a number of states establishing a threshold for the exemption from paying overtime.
In 2019, New York enacted the Farm Laborers Fair Labor Practices Act (FFLPA) which set a 60 hour per week threshold after which workers must be paid time and one half. It also created a weekly mandatory day of rest, requiring workers be paid time and one half if they choose to work on that day, regardless if they had reached the 60-hour weekly threshold or not.
Relative to the 60-hour weekly overtime threshold, the FFLPA also created a Farm Laborers Wage Board that can recommend whether the threshold be lowered. The Wage Board took testimony throughout 2020 and in December 2020, recommended maintaining the threshold at 60 hours pending further study of the issue.
In 2021, the Farm Laborers Wage Board will reconvene between November 1 and December 15 to consider lowering the 60-hour threshold again. They’ll review economic and other data relating to the impact of the overtime threshold on farm employers and employees.
In October, Farm Credit East Knowledge Exchange issued a report to estimate the economic impacts to farms of lowering the threshold to 40 hours. The report shows that lowering the threshold to 40 hours could have a significant economic impact on New York’s farms, and that taken together with the scheduled increases in minimum wage, is estimated to increase labor expenses $264 million, or 42%, causing a reduction in farm income of 20%. Click here to see the full report and here for the latest Wage Board updates.
In 2021, legislation to require mandatory overtime for farmworkers was also introduced in the Maine legislature. LD 1022, HP 760, an Act to make agricultural workers and other workers employees under the Wage and Hour Laws, was the subject of a Joint Standing Committee on Labor and Housing hearing on April 7, 2021, at which Farm Credit East provided testimony.
The bill would have provided that agricultural employees be subject to laws that set a minimum wage and overtime rates and that the overtime laws apply to certain activities related to agricultural produce, meat and fish products, and perishable foods. The bill was defeated in the Maine House of Representatives in June, by a vote of 61-80.
The situation relative to overtime in Massachusetts is more complicated. While agricultural workers in the Commonwealth are generally exempt from overtime, a 2019 court ruling by the Massachusetts Supreme Judicial Court (SJC), Arias-Villano et al. v. Chang & Sons Enterprises, Inc., narrowed the scope of the exemption based on the type of work performed to include “only the work of planting, raising and harvesting crops.”
Separate from the narrowing of the exemption from the SJC ruling, there has been legislation introduced, SB 1205 and HB 1979, to limit the exemption from paying overtime to agricultural workers. The bills would provide for a mandatory day of rest where workers would receive time and one half pay if they chose to work that day and limit the exemption from paying time and one half for overtime to 55 hours worked per week, limited to certain times of the year. The bill would also eliminate the separate agricultural minimum wage.
There was a hearing of the Joint Committee on Labor and Workforce Development on the bills on November 9, with written testimony being accepted until November 16. Farm Credit East will be submitting a statement and members from Massachusetts who wish to do so can find instructions here.
Outside the Northeast
California, Hawaii, Maryland and Minnesota are states outside the Northeast that require the payment of overtime for agricultural workers. In California, the current threshold requires the payment of overtime after 8.5 hours per day or 45 hours per week for employers with more than 26 employees, but the threshold is due to be lowered to 8 hours per day and 40 hours per week in 2022.
Hawaii’s threshold is 40 hours; however, employers can select 20 weeks where the threshold is 48 hours. Minnesota also has a 48 hour per week threshold, however employees with a weekly wage determined by a specific formula, currently $735 or higher, are exempt. Finally, Maryland requires overtime to be paid for hours in excess of 60 per week.
Editor: Chris Laughton
Contributors: Tom Cosgrove and Chris Laughton
View previous editions of the KEP