The New York Farmworker: Hours, Wages & Injuries

Authors

Margaret Gray, PhD, is an Associate Professor of Political Science at Adelphi University.

Nina Donaldson is a candidate for a Master of Science in Labor Studies at the University of Massachusetts-Amherst Labor Center.

Kelly Miller holds a Master of Science in Labor Studies at the University of Massachusetts- Amherst Labor Center.

Artist Credit

Cover Art: “Hands in the Field” by Jay Mercado (https://www.jaymercado.com/)

Acknowledgements

First and foremost, our gratitude goes to the 602 workers who participated in this study. We would also like to thank the union organizers from Trabajadores Agrícolas Unidos (TAU) who conducted the surveys. The UMASS Labor Center offered support that was critical to the publication of this report; in particular, we thank Cedric de Leon and Clare Hammonds. Emma Kreyche from the Worker Justice Center of New York helped distribute the survey and offered her expertise with many questions. Our appreciation is also extended to Tom Joyce and Carlos Guittierez from the Midstate Council on Occupational Safety and Health for distributing the survey. Olivia Heffernan helped with the analysis of the data and editing of this report. Antoinette Pole gave us helpful guidance on the methodology section and comments on the draft report. We are grateful to Tomas Madrigal and Hannah Gordon for their expertise and advice for enhancing this report. In addition, Rural and Migrant Ministry generously offered a writing residency to Margaret Gray during the drafting of this report. Mil gracias to Jay Mercado for donating the use of his painting, Hands in the Fields, for the cover art. Additional thanks goes to those who offered comments on a draft of this report: Tom Joyce, David Kallick, Charlene Obernauer, Greg Schell, Alaina Varvaloucas, Richard Witt, and Lisa Zucker. Finally, we thank Andrew Ross and Peach for their support.

Suggested Citation

Gray, Margaret, Nina Donaldson, and Kelly Miller. The New York Farmworker: Hours, Wages & Injuries. Amherst: UMass Amherst Labor Center, 2023.

“This is dangerous work. We don’t talk about it because we want and need to work. To be hired, you can’t be known as someone who talks about the risks of this job.”

All quotations in this report are from New York Farmworkers.

• Figure 1: Value of New York Agricultural Products
• Figure 2: Market Value of Agricultural Products Sold and Labor Expenses
• Figure 3: Respondent Farm Location
• Figure 4: Respondent Farm Sector
• Figure 5: Respondent Gender
• Figure 6: Lost-Worktime Injuries
• Figure 7: Fatality Rates in Agriculture v. All Other Industries
• Figure 8: Payment for Lost-Worktime Injuries
• Figure 9: Work Hours
• Figure 10: Overtime Pay after 60 Hours
• Figure 11: Payment Method
• Figure 12: Wage Distribution of Upstate Respondents
• Figure 13: Wage Distribution of Long Island Respondents
• Table 1: New York National Product Ranking
• Table 2: Upstate Respondents
• Table 3: Women Respondents
• Table 4: Lost-Worktime Injuries by Sector
• Table 5: Respondents Paid Below Minimum Wage-Characteristics

This report is based on 530 surveys with New York State farmworkers on more than one hundred farms. This is the largest number of the state’s migrant, seasonal, and year-round farmworkers to participate in a single survey.¹ The goal of the survey was to collect data about farmworkers’ on-the-job injuries, compensation for lost worktime, working hours, and wages. This survey also sought to evaluate the implementation of the overtime provision of New York’s 2019 Farm Laborers Fair Labor Practices Act (FLPA).

Historically, farmworker voices have been absent in public discussions of New York farmworker policy. The state’s farmworkers are generally not citizens—they are undocumented and guestworkers—so they have good reasons to hesitate before speaking up about problems related to their workplaces, particularly if their housing is tied to their jobs. Many farmworkers fear that their employer may retaliate against them by cutting their hours, firing them, illegally evicting them, or calling immigration authorities.² This report foregrounds farmworkers’ experiences and opinions to help mitigate the absence of their voices in policy debates about their working conditions and wellbeing.

BIDEN ADMINISTRATION:

Under the Biden administration, the U.S. Department of Homeland Security (DHS) amended its deferred action program (which temporarily prevents detention or deportation) to include those involved in an active labor investigation. Those granted deferred action are generally permitted to remain and work in the US for an additional two years.

The deferred action program should allow those with a work-related injury or illness to stay in the U.S. for necessary medical treatment, to assure appropriate medical attention for those who contribute their labor to U.S. farms. In addition, H-2A visa holders with a work-related injury should be given extensions on their visas to seek medical attention in the U.S.

CONGRESS:

Since 1976, Congress has added a small farms rider to the Annual Labor-Health and Human Services Appropriations Bill, which exempts farms with fewer than eleven non-family employees from Occupational Safety and Health Administration (OSHA) enforcement authority.

Prevent the addition of this rider to the Annual Labor-Health and Human Services Appropriations Bill, to address the lack of attention to, and absence of data on, farmworker injuries. This would allow for more accurate data on farm-related injuries and better inform policy decisions about farm safety and health. At a minimum, Congress should allow OSHA to investigate fatalities on all farms. This would improve tracking of work-related fatalities and prevent the miscategorization of fatalities as not work related. This, in turn, would facilitate families’ claims for death benefits from workers’ compensation.

THE NEW YORK STATE LEGISLATURE AND THE GOVERNOR:

Increase funding for the New York State Department of Labor (NYSDOL) to conduct outreach to farmworkers to better educate workers about their rights and identify labor law violations. This would help prevent the wage theft revealed in this report and is particularly critical as the agricultural overtime threshold is lowered every two years.

Provide additional funding for the New York State Department of Labor to prioritize anti- retaliation reports, a pressing concern as farmworker unionization efforts increase.

Pass the Securing Wages Earned Against Theft Bill (SWEAT) (Senate Bill S1977, Assembly Bill A46) that, in cases of wage theft, would allow an individual, the NYSDOL, or the state Attorney General to file a wage lien on an employer’s property. This would add an additional mechanism to assure workers are paid for the hours that they worked.

Pass the Empowering People in Rights Enforcement Bill (EMPIRE) (Senate Bill S541A, Assembly Bill A5876A) to allow workers or their representatives to initiate public enforcement actions against employers (currently only the NYSDOL can begin such actions) to compel employers to follow the state labor law. This would expand the enforcement of labor protections and add an additional mechanism to compel employers to respect workers’ rights.

Create designated funding for community-based organizations to conduct wage theft prevention training with farmworkers. Educating workers about wage laws and how to report wage theft is critical to mitigate the underpayment of farmworker wages.

Pass Senate Bill S1161, Assembly Bill A2034 to increase the workers’ compensation minimum weekly benefit and set it at one-fifth of the statewide average weekly wage. This would align the New York workers’ compensation minimum weekly benefit calculation with New Jersey.

The current minimum weekly benefit of $150 is inadequate, and unfair to farmworkers whose employers pay them off the books. Increasing the weekly minimum benefit would encourage more injured farmworkers to assert their rights.

Increase funding for the New York State Workers’ Compensation Board for enforcement and community outreach. This would allow the Workers’ Compensation Board to better fulfill its mission and protect the rights of more workers. The Workers’ Compensation Board is currently funded by assessments, which is not viable, especially considering the 2 percent cap on the growth of assessments for farmland.

Increase funding for the New York State Workers’ Compensation Board to translate decisions and notices, currently only offered in English. Translation of these important documents would create more accessibility for farmworkers who do not read or write in English

Create designated funding for community-based organizations to conduct workers’ compensation training with farmworkers. Educating workers about workers’ compensation is vital to ensure that workers who produce our food can secure appropriate medical services when they suffer a work-related injury or illness.

Consider legislation to better educate medical providers about workers’ compensation, to require them to provide information directly to workers about workers’ compensation, and to file the standard CMS 1500 medical report in a timely manner.

Consider legislation to improve farmworker access to medical attention, such as requiring employers to transport workers for urgent medical care, this is especially important in remote rural areas.

Pass the Unemployment Bridge Program Bill (Senate Bill S3192, Assembly Bill A482) so that New Yorkers who are not eligible for regular unemployment insurance can receive compensation when they lose their jobs. This would mitigate farmworkers’ fear of retaliation for reporting unsafe and/or unlawful working conditions.

Pass the State Language Access Bill (Senate Bill S3381A, Assembly Bill A503A), which would extend language access requirements (the translation of documents and forms) to all state and county agencies and departments. Currently this is only required by agencies under the Governor’s jurisdiction.

Governor Hochul’s “Strategic Industry Task Force Lessening Obstacles to Agriculture (SILO),” which addresses labor issues, should include farmworkers and farmers who represent the interests of workers and the unions representing them.

THE NEW YORK STATE DEPARTMENT OF LABOR:

Continue to prioritize addressing anti-retaliation reports from farmworkers, a pressing concern as unionization efforts increase across the state.

Create handouts with large text size and graphics to better educate farmworkers about their rights.

THE NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE:

Create an easy form and process for farm employers to request the 118% refundable tax credit for the overtime premium.

There is a significant dearth of data on farmworkers in the United States. This absence is particularly striking in contrast to the data available on farm owners and farm operations.

New York farmworkers fit into a variety of categories: seasonal or year-round; hired directly or hired via contractor; and varied legal statuses including citizen, green-card holder, H-2A foreign guestworker, or undocumented immigrant.⁷ Some migrant workers (this term excludes H-2A foreign guestworkers) tend to travel from within the United States to New York (typically within the Eastern Seaboard); they come and go in the same year. In contrast, other migrant workers stay in New York for a number of years or indefinitely. Farmworkers who are not U.S. citizens tend to fear that their employer may retaliate against them by cutting their hours, firing them, illegally evicting them, or calling immigration authorities.⁸

Crop work is seasonal, although some fruit and vegetable farms hire workers during the off-season months (e.g. to trim fruit trees and engage in farm maintenance). It is not uncommon for seasonal workers to live year-round in New York, including in employer-owned farm labor camps, even if they are not employed in the winter months.

Number of Farmworkers

There is no definitive estimate of the number of farmworkers in New York. The 2017 Census of Agriculture reports 55,945 employees are included in “hired farm labor” in the state. However, this number includes paid family members as well as “bookkeepers, office workers, maintenance workers, etc.”⁹ Additionally, New York farms hire contract workers—both domestic and foreign—including H-2A visa holders. The Census of Agriculture does not give a number for contract workers on New York farms. Rather, it reports the contract labor expenses, which comprise 15% of all labor expenses.¹⁰ A 2021 Legal Services Corporation report estimated 53,624 active farmworkers in New York State, including H-2A visa holders and other contract workers.¹¹

The number of H-2A workers is available. In 2017 (the year of the last Census of Agriculture), there were 5,603 H-2A visa entries to the United States for employment in New York. This is a lower number than the 6,870 positions certified. It is common for farm employers to ask for a higher number of guestworker positions to be approved, since weather and other conditions influence the actual number needed. In 2020, there were 7,406 H-2A visa entries to the United States for work in New York and 9,192 H-2A positions certified.¹² This represents a 32% increase in H-2A visa admissions of those destined for New York farms from 2017 to 2020.

Demographic Shift

Starting at the end of the 20th century, there was a shift in the composition of New York’s agricultural workforce by race, national origin, and legal status.¹³ The number of black farmworkers, including African American and Caribbean-born, declined as the number of Mexican and Central American immigrants grew. There was a corresponding decrease in citizens and green card holders and an increase in undocumented immigrants. The shift also included a decrease in workers who seasonally migrate from another state and an increase in seasonal workers who live year-round in New York. This began in crop work (roughly in the 1980s) and started later in dairy (in the early 2000s).

Agricultural Worker Defined¹⁴

Sometimes greenhouse, nursery, packing house, vineyard, and others are not considered agricultural employees and are therefore entitled to overtime pay after 40 hours. For example, when a greenhouse purchases plants that only need repotting and watering to be resold, that labor is not considered agricultural labor.¹⁵ If packing house workers pack products from a farm not owned by the same owner, those workers are not considered agricultural employees.¹⁶ Similarly, if vineyard workers do labor in the farm’s winery, that is not considered agriculture.¹⁷

A worker’s status is managed on a weekly basis—such workers may be considered agricultural employees for some weeks and not agricultural employees for other weeks. A vineyard worker who, for example, works most of a week outdoors in the vineyard and half a day in the farm’s winery is not considered an agricultural employee during that week and is entitled to overtime pay after 40 hours.¹⁸

There can be confusion about whether a worker is considered an agricultural employee or not. For example, one of the respondents stated, “I fix machinery and the farm considers me a mechanic, but I don’t get overtime after 40 hours.” Even though some mechanics do not engage with livestock or crops, they may be categorized as agricultural employees if the work they do “contributes to farm operations”.¹⁹

Union Organizing

With the passage of the FLPA, New York’s farmworkers earned the right to join a union through a card check process, overseen by the New York Public Employees Relations Board (PERB). Since farmworkers are excluded from federal collective bargaining protections, the National Labor Relations Act does not cover them; therefore a state agency must oversee farmworker unionization. On September 27, 2021, history was made when New York’s first farmworker union was certified by the PERB and RWDSU/UFCW Local 338 became the representative of employees at Pindar Vineyards in Peconic on Long Island.

“In terms of organizing, I am very nervous about losing my job. I know it’s technically illegal for the bosses to punish someone for wanting to organize, but I know workers who have been fired for this.”

“I am interested in learning more about the union. I was excited for Pindar workers to get their union.”

“I mostly like my work right now. I know about Pindar and think it’s very good. I know I have organizing rights, but I haven’t really thought about it much.”

“I feel positive about the Pindar union. I’m not totally dissatisfied with my job, but it could be better.”

Citations for all federal and state policies can be found in Appendix B.

“I have been working at the same farm for twenty years and don’t get a day off.”

n = $5.4 billion

Source: “Table 1. Historical Highlights: 2017 and Earlier Census Years.” 2017 U.S. Census of Agriculture New York State and County Data Volume 1, Geographic Area Series, Part 32. United States Department of Agriculture, National Agricultural Statistics Service, 2019. https://tinyurl.com/32udsry3.

New York farms generate $5.4 billion in sales; two-fifths of sales ($2.1 billion) are from crops (including nurseries and greenhouses) and three-fifths of sales ($3.26 billion) derive from livestock, poultry, and their products (see fig. 1).²³ Milk production, with sales at $2.5 billion, is 47% of the state’s total agricultural sales—the highest, by far, of any agricultural product.

Labor costs account for 20% of the state’s total farm expenses.²⁴ A little more than one-quarter (27%) of New York’s farms have labor expenses; in other words almost three-quarters of farms have no labor expenses. Figure 2 reveals that 62% of total farm labor expenses are incurred by only 2.8% of New York farms; these farms have one million dollars or more in annual sales.

Sixteen New York agricultural products rank in the top five nationally for sales (see table 1).

This descriptive study of New York farmworkers employs a cross-sectional design (looking at data at a specific point in time) to examine respondents’ on-the-job injuries, compensation for lost worktime, working hours, and wages, as well as the early implementation of the overtime provision of the FLPA. The Trabajadores Agrícolas Unidos (TAU) coalition generated the survey questions and its union organizers conducted the survey. The coalition includes the United Food and Commercial Workers (UFCW), the Retail, Wholesale and Department Store Union (RWDSU), UFCW Local One, UFCW Local 888, and Local 338 RWDSU/UFCW. The TAU provided the data to the authors. The TAU coalition members were not involved in the data analysis, nor the writing of this report.

Sample

To survey New York state farmworkers, a convenience sample was employed as opposed to a random sample of the entire population of New York farmworkers. Agricultural laborers were identified based on union organizers’ previous contacts. Additional respondents were identified through snowball sampling, whereby those who took the survey provided names of potential respondents. The survey also could be completed online. To recruit online respondents, the TAU posted links to the survey on its Facebook page on April 27, 2022. In addition, in the spring of 2022, the Midstate Council on Occupational Safety and Health and the Worker Justice Center of New York both sent text messages with a link to the online survey to their lists of farmworkers.

The survey did not aim to determine which respondents were agricultural workers according to the definition on page 10. Some of the respondents volunteered that they were paid overtime after 40 hours; they were employed in nurseries, greenhouses, and packing houses. As such, some respondents may technically not be agricultural employees. For the purposes of this report, we include their responses for several reasons. The work tasks and working conditions of the non-agricultural-employee respondents are not distinguishable from the agricultural- employee respondents. Moreover, this data is valuable to service providers and advocates, who often do not know who is technically classified as an agricultural worker and who is not; they help workers regardless.

To be included in the sample, survey respondents had to be employed doing agricultural work tasks in New York after January 1, 2020 (when the FLPA took effect). Survey respondents were not compensated for their participation. This sample is not statistically representative of New York’s farmworker population, since the survey employed a convenience and snowball selection method.

Data

Sample data for this report are based on 602 in-person, telephone, and online surveys conducted with New York farmworkers between December 1, 2021 and May 15, 2022. The surveys were conducted in Spanish and English by six TAU organizers. Potential survey respondents were contacted either in person or on the phone, received a description of the survey questions, and were asked for oral consent to participate; the survey was either conducted at that time or scheduled for a later time. Eight respondents independently completed the survey online. Surveys were conducted without the knowledge of employers. This is the largest number of the state’s migrant, seasonal, and year-round farmworkers to participate in a single survey.²⁵

The authors received the raw data in a spreadsheet, and cleaned the sample to include only those who met the sample criteria and to remove incomplete and duplicate responses. The final sample had 530 respondents on at least 101 farms (22% of respondents did not report the name of their employer).

Available in Spanish and English, the survey instrument consisted of 13 questions (see Appendix A). These included 12 closed-ended questions and one open-ended question. The questions relate to respondents’ work- related injuries that resulted in lost worktime, their pay, and the number of hours they worked. On average, it took respondents 20 minutes to complete the survey.

The open-ended question yielded comments. We included these comments, except for those that were not legible or did not have enough context to stand on their own (e.g. “I got hit”). For the comments, the following categories were created using content analysis: day of rest, number of hours per week, overtime pay, unions, working conditions, wages, Covid-19, and injuries. For consistency, some comments were edited to appear in the first person. Comments in Spanish were translated into English. Occasionally the authors sought translation assistance with comments, though two of the authors speak and read Spanish proficiently.

Respondents who offered comments about their injuries were contacted a second time by the TAU organizers for clarification and elaboration on their comments. Some details were removed from these injury stories to protect the confidentiality of the respondents.

Analysis

Since the minimum wage increased from 2021 to 2022, respondents were contacted a second time to update wage data if they completed a survey in December 2021. When that was not possible, wage data were removed, but the remaining survey responses were preserved.

All responses were analyzed except for questions nine and ten, which yielded unreliable responses; these are not reported.

n=530

n = 530

* Two chicken farms, two Christmas tree farms, two sod farms, one horse farm, and one goat/sheep farm.

n = 530

The sample data have a high percent of women respondents (45%), compared to the national average (26%). This is due to the high percent of greenhouse and nursery worker respondents—42% of those surveyed (see fig. 4). Women tend to be a greater concentration of the agricultural labor force in New York’s nurseries, greenhouses, and packing houses, compared to other farming sectors. Notably, the share of women farmworkers in the United States has increased in recent years, from 21% in 2012 to 26% in 2019.³² The percent of women respondents per sector are: 77% greenhouse, 77% packing house (produce), 64% nursery, 36% fruit/vegetable farm, 17% dairy, and 13% vineyard (see table 3).

n = 530

Lost-Worktime Injuries

Farming is one of the most dangerous industries in the United States for laborers and farm owners alike. Farmworkers and their families “experience noteworthy physical and mental health hazards,” poor access to health services, and farmworkers have fewer health and safety protections than other workers. Furthermore, the fear of retaliation and lost income can lead workers to avoid reporting unsafe working conditions.³³

81% of respondents (412 workers) reported not having an injury that led to lost worktime

19% or respondents (99 workers) reported having an injury that led to lost worktime

n=511

Source: “Total hours worked and rates of fatal occupational injuries by selected worker characteristics, occupations 2020.” Survey of Occupational Injuries and Illnesses Data, United States Department of Labor, Bureau of Labor Statistics, 2020, https://tinyurl.com/2p82ct8y.

“When I was injured, I didn’t rest, because they don’t pay for time off—even when injured at work.”

“I was out for five weeks with COVID and was paid part of my wages.”

Of those who reported getting injured at work,

49% (48 respondents) reported receiving no payment while they were out of work and

44% (43 respondents) reported receiving payment while they were out of work.

6% (6 respondents) reported that they did not know.

n = 97

Roughly half of the respondents (49%) who reported having an on-the-job injury that resulted in lost worktime said they did not receive any payment for the lost worktime (see fig. 8). Keep in mind that workers who should have taken time off for an injury may not have done so.

Of all the findings in this report, the lack of payment for lost-worktime injuries is the most significant, and could potentially have a long-term effect on workers’ health. The FLPA requires that all agricultural employers provide workers’ compensation and disability insurance for their employees. Farmworkers are also eligible for paid sick leave under the New York State Sick Leave Law.

It is clear that workers are not pursuing workers’ compensation claims, nor paid sick leave under the New York State Sick Leave law. This is consistent with a 2000-2001 study of more than 2,000 injuries or illnesses of Northeast migrant and seasonal farmworkers, which demonstrated that only 2.8% applied for workers’ compensation.⁴⁷ This is likely due to lack of knowledge, language barriers, fear, or because some employers take workers to the doctor themselves and pay out of pocket. Workers may not realize that without a workers’ compensation claim, they will likely have to pay for long-term injuries themselves or just suffer without further treatment.

New York (one of 14 states in which farmworkers are eligible for workers’ compensation)⁴⁸ requires a “waiting week”. In other words, eligibility for workers’ compensation begins on the 8th calendar day of lost worktime. If the lost worktime exceeds 14 days, an employee is eligible to be paid from the initial date of lost worktime; 14 days or fewer, an employee will not be paid workers’ compensation for the first week.⁴⁹

Farmworkers may be eligible for remuneration for that first week under the New York State Sick Leave Law.⁵⁰ Yet they have obstacles to accessing workers’ compensation and paid sick leave, including lack of awareness about the program, limited English language skills, and fear of deportation and employer retaliation.⁵¹

Paid sick leave for New York farmworkers is dependent on a farm’s number of employees and net income.⁵²

• Farms with fewer than five employees and a net income of less than $1 million are only required to provide 40 hours of unpaid sick leave per year.
• Farms with fewer than five employees and income exceeding $1 million are required to provide 40 hours of paid sick leave per year.
• Farms with 5-99 employees, regardless of income, are required to provide 40 hours of paid sick leave per year.
• Farms with 100 or more employees are required to provide 56 hours of paid sick leave per year.
• Farmworkers accrue one hour of sick leave for every 30 hours worked.

“I was out for a week and was paid for 40 hours.”

“They paid for my medical costs, but not lost days.”

“I hurt my eye and they never helped me; the manager never helps at all.”

When analyzing these data by the other variables, several data points stood out:

• The highest lost-worktime injuries by sector were in dairy with 33% of dairy-worker respondents reporting a lost-worktime injury (see table 4).
• 29% of Upstate respondents, more than double the percent of Long Island respondents (13%), were injured on-the-job and lost worktime.
• 15% of women and 22% of men reported a lost-worktime injury.
• 42% of the respondents who are paid below minimum wage reported being injured and losing worktime (8 respondents). This is 121% higher than the 19% of all respondents who reported being injured on the job and losing worktime.

“When I was injured on the job, my employer didn’t cover anything—not the hospital bill, not the medicine, and not my time away from work.”

“The first time I had Covid they only paid me $250. The second and third time I had Covid, they did not pay me and I kept working. A lot of people have to work when they have Covid.”

The injury stories in this report detail workers’ pain, frustration over lost wages, how medical bills were paid (by workers themselves or employers, generally not by workers’ compensation), and feelings that their employers do not care about them.

“It was just a normal day and we were beginning work when I fell from a height. Maybe if someone had been assisting me this wouldn’t have happened. Nothing was broken, but years later I still have pain—it’s around my lower back and it hurts sometimes when I’m working.

My boss took me to a private doctor. Since I don’t speak English and they didn’t translate, I didn’t say anything!

The boss spoke for me and I am not even sure what I signed.

For three weeks, I was not able to work. I was paid for two weeks, but not my full salary, so it wasn’t enough.

As for the medical bills, I don’t know who paid them. I had to pay for physical therapy myself. I’m not sure if I still owe money; they may have sent the bills to an old address.”

“I was injured and never claimed workers’ comp. My employer paid tens of thousands of dollars for my hospital bills, but didn’t pay me anything for my lost worktime. I still have issues with my injury, but I am expected to take care of it on my own.”

“I lost the tip of my finger, this could have been prevented if I had received training. They make us work really fast so we’re often tired. The boss paid my medical and physical therapy bills, and my weekly salary while I was out. I still have some pain, and movement is more difficult.”

“A cow kicked me when I was helping coworkers transport cows from one place to another. They are animals of the mountains; they’re big and temperamental. Of course we were rushing, we are always rushing—that is how we work.

I had to visit the doctor that same day. My boss paid almost all the medical bills. I don’t remember how much it was. I did not apply for workers’ compensation and didn’t have any of the medical records or evidence.

After I was out of work for a bit, I felt pressured to return. They didn’t threaten anything, but I felt pressure anyway. Also, I really needed to get back to work for myself since I received no pay while I was out of work. I have a family and we rely on my paycheck. Everything requires money.

The injury took months to fully heal and I worked all that time. I needed to pay attention to it frequently. Right now I would say I’m 95% better.

Most people don’t know what farm jobs are like. Thank you for interviewing me to gather this information and for caring about what happens to us in this job.”

“I have hurt both my finger and my back doing farm work. When I hurt my finger, I was in Florida and the boss paid for everything. The back was different. It started to hurt about two years ago as a result of lifting heavy items; this was in New York. I went to the doctor and he said that I had a slipped disk. The doctor didn’t ask if it was related to work.

I haven’t taken any time off work due to my back pain, except for the doctor’s appointment—I paid for that. I can’t afford to take days off work. Some days I am in constant pain.”

“I only had a scare. The person driving the tractor drove into me. The manager told me to go and rest and they paid me for my full day. Luckily, I didn’t have any injuries.”

“My coworker died and I feel awful about this situation, we all do. When he first got sick, the boss paid him for several weeks, but then seemed annoyed that he was out of work and stopped paying him. It really felt like the boss didn’t care to help him. My coworker went to the doctor— we have to pay for that ourselves. I think this might have been related to Covid. This situation makes me think that perhaps it’s better to return to my home country.”

“Toward the end of a night shift, I was trying to finish my duties and I slipped, ending up with two fractures. I may have been rushing. This was my first time getting injured. I speak a little English, so I could sort of communicate with the orthopedist, who knew this was a work injury.

I was really frustrated because months went by without any pay while I was out of work with this injury. I’m a father, I have a car loan, and of course I have to pay for food.

Finally, I spoke to someone about getting help and was referred to a farmworker advocate. That advocate taught me my rights as an injured farmworker and I was able to get a lawyer in my native language. The lawyer helped get my paperwork straightened out. In the end, workers’ compensation covered my lost days of work. This only happened because I found an advocate. I really felt that my employer did not care about me all those months.”

“The company is now offering medical insurance and it turns out we pay weekly for this. But it covers absolutely nothing! The clinic that accepts the insurance still charges the workers. Now some of those bills are in collections and the workers don’t know what to do.”

n = 528

56% of respondents (296 workers) reported working 60 or fewer hours per week.

44% of respondents (232 workers) reported working more than 60 hours per week.

Almost half of the respondents reported working more than 60 hours a week (see fig. 9). Of those, 93 added a comment that this only occurred in the summer and three added a comment that they only worked more than 60 hours a week during the apple harvest.

“I work more than 80 hours in the summer at this nursery.”

“I regularly work a 70-hour workweek at this dairy farm.”

“Sometimes I work all seven days, and I only rest if my kid is sick.”

n = 229

Of those who reported working more than 60 hours per week,

72% (166 respondents) reported being paid time-and-a-half after 60 hours

25% (57 respondents) reported not being paid time-and-a-half after 60 hours

2.6% (6 respondents) reported that they did not know if they were paid time-and-a-half after 60 hours

The data exposes wage theft. Of the 44% of workers surveyed who reported working more than 60 hours a week, one quarter were not paid the required time-and-a-half overtime pay (see fig. 10). This requirement began in January 2020 with the implementation of the FLPA.

Seven respondents mentioned they were paid overtime after 40 hours. These were greenhouse workers. Some greenhouse workers are not categorized as agricultural employees by federal or New York law, for example, if they package already grown plants (see the definition of farmworker on p.11). Seven respondents reported that they were told they would be paid time-and-a-half after 60 hours a week, but they do not work more than 60 hours a week.

“In the summer the boss threatens us, so we don’t have a choice about working the seventh day.”

“I feel like the bosses pit us, the workers, against each other.

They also blame us if we have to put in more hours and sometimes they takeaway our hours.”

n = 170

Of the Upstate NY respondents:

• The average 2022 hourly wage is $14.40 per hour.
• 18% are paid $15.01 - $18 per hour.
• 29% are paid $15 per hour.
• 26% are paid $13.21 - $14.99 per hour.
• 21% are paid $13.20 per hour (2022 minimum wage).
• 5.9% are paid less than $13.20 per hour (wage theft).

n = 303

Of the Long Island respondents:

• The average 2022 hourly wage is $16.19 per hour.
• 4.3% are paid $20.01 - $24.50 per hour.
• 43% are paid $15.01 - $20 per hour.
• 49% are paid $15 per hour (2022 minimum wage).
• 3% are paid less than $15 per hour (wage theft).

The data from figures 12 and 13 indicate the 2022 regional wage distribution:

• 5.8% of Upstate respondents and 3% of Long Island respondents reported wage theft— they are paid below the minimum wage.
• 49% of Long Island respondents reported being paid exactly the minimum wage; this is 142% higher than the 20% of Upstate respondents who reported being paid exactly the minimum wage.
• 74% of Upstate respondents reported being paid above the minimum wage; this is 54% higher than the 48% of Long Island respondents who reported being paid above the minimum wage.
• The Long Island median wage ($15) is the same as the Long Island minimum wage.
• The Upstate median wage ($14.50) is 9.8% higher than the Upstate minimum wage ($13.20).

n = 530

While the number of respondents experiencing wage theft by being paid below the minimum wage is very small, the data indicate that employers who do not pay the minimum wage also tend to violate other worker protections and have more dangerous workplaces (see table 5). Of the 4% of respondents (19) who do not get paid the minimum wage, nine are on Long Island and ten are Upstate.

Starting in 2017, New York began a series of wage increases to reach a statewide hourly wage of $15.00. The increases vary in terms of region. New York City reached this wage by 2020. Long Island and Westchester were at the $15.00 hourly rate by the beginning of 2022. The remainder of New York State had a minimum hourly wage of $13.20 for 2022 and that increased to $14.20 for 2023. Future increases have yet to be determined.⁵⁴

BIDEN ADMINISTRATION:

Under the Biden administration, the U.S. Department of Homeland Security (DHS) amended its deferred action program (which temporarily prevents detention or deportation) to include those involved in an active labor investigation. Those granted deferred action are generally permitted to remain and work in the US for an additional two years.

The deferred action program should allow those with a work-related injury or illness to stay in the U.S. for necessary medical treatment, to assure appropriate medical attention for those who contribute their labor to U.S. farms. In addition, H-2A visa holders with a work-related injury should be given extensions on their visas to seek medical attention in the U.S.

CONGRESS:

Since 1976, Congress has added a small farms rider to the Annual Labor-Health and Human Services Appropriations Bill, which exempts farms with fewer than eleven non-family employees from Occupational Safety and Health Administration (OSHA) enforcement authority.

Prevent the addition of this rider to the Annual Labor-Health and Human Services Appropriations Bill, to address the lack of attention to, and absence of data on, farmworker injuries. This would allow for more accurate data on farm-related injuries and better inform policy decisions about farm safety and health. At a minimum, Congress should allow OSHA to investigate fatalities on all farms. This would improve tracking of work-related fatalities and prevent the miscategorization of fatalities as not work related. This, in turn, would facilitate families’ claims for death benefits from workers’ compensation.

THE NEW YORK STATE LEGISLATURE AND THE GOVERNOR:

Increase funding for the New York State Department of Labor (NYSDOL) to conduct outreach to farmworkers to better educate workers about their rights and identify labor law violations. This would help prevent the wage theft revealed in this report and is particularly critical as the agricultural overtime threshold is lowered every two years.

Provide additional funding for the New York State Department of Labor to prioritize anti- retaliation reports, a pressing concern as farmworker unionization efforts increase.

Pass the Securing Wages Earned Against Theft Bill (SWEAT) (Senate Bill S1977, Assembly Bill A46) that, in cases of wage theft, would allow an individual, the NYSDOL, or the state Attorney General to file a wage lien on an employer’s property. This would add an additional mechanism to assure workers are paid for the hours that they worked.

Pass the Empowering People in Rights Enforcement Bill (EMPIRE) (Senate Bill S541A, Assembly Bill A5876A) to allow workers or their representatives to initiate public enforcement actions against employers (currently only the NYSDOL can begin such actions) to compel employers to follow the state labor law. This would expand the enforcement of labor protections and add an additional mechanism to compel employers to respect workers’ rights.

Create designated funding for community-based organizations to conduct wage theft prevention training with farmworkers. Educating workers about wage laws and how to report wage theft is critical to mitigate the underpayment of farmworker wages.

Pass Senate Bill S1161, Assembly Bill A2034 to increase the workers’ compensation minimum weekly benefit and set it at one-fifth of the statewide average weekly wage. This would align the New York workers’ compensation minimum weekly benefit calculation with New Jersey.

The current minimum weekly benefit of $150 is inadequate, and unfair to farmworkers whose employers pay them off the books. Increasing the weekly minimum benefit would encourage more injured farmworkers to assert their rights.

Increase funding for the New York State Workers’ Compensation Board for enforcement and community outreach. This would allow the Workers’ Compensation Board to better fulfill its mission and protect the rights of more workers. The Workers’ Compensation Board is currently funded by assessments, which is not viable, especially considering the two percent cap on the growth of assessments for farmland.

Increase funding for the New York State Workers’ Compensation Board to translate decisions and notices, currently only offered in English. Translation of these important documents would create more accessibility for farmworkers who do not read or write in English

Create designated funding for community-based organizations to conduct workers’ compensation training with farmworkers. Educating workers about workers’ compensation is vital to ensure that workers who produce our food can secure appropriate medical services when they suffer a work-related injury or illness.

Consider legislation to better educate medical providers about workers’ compensation, to require them to provide information directly to workers about workers’ compensation, and to file the standard CMS 1500 medical report in a timely manner.

Consider legislation to improve farmworker access to medical attention, such as requiring employers to transport workers for urgent medical care, this is especially important in remote rural areas.

Pass the Unemployment Bridge Program Bill (Senate Bill S3192, Assembly Bill A482) so that New Yorkers who are not eligible for regular unemployment insurance can receive compensation when they lose their jobs. This would mitigate farmworkers’ fear of retaliation for reporting unsafe and/or unlawful working conditions.

Pass the State Language Access Bill (Senate Bill S3381A, Assembly Bill A503A), which would extend language access requirements (the translation of documents and forms) to all state and county agencies and departments. Currently this is only required by agencies under the Governor’s jurisdiction.

Governor Hochul’s “Strategic Industry Task Force Lessening Obstacles to Agriculture (SILO),” which addresses labor issues, should include farmworkers and farmers who represent the interests of workers and the unions representing them.

THE NEW YORK STATE DEPARTMENT OF LABOR:

Continue to prioritize addressing anti-retaliation reports from farmworkers, a pressing concern as unionization efforts increase across the state.

Create handouts with large text size and graphics to better educate farmworkers about their rights.

THE NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE:

Create an easy form and process for farm employers to request the 118% refundable tax credit for the overtime premium.

Survey Questions in English:

1. Name
2. Email
3. Phone Number
4. Name of Farm where you work
5. Do you ever work more than 60 hours per week? Yes / No
6. Do you get paid time and one-half for all hours worked over 60? Yes / No
7. Form in which you are paid         Direct Deposit / Check / Cash
8. How much are you paid per hour?
9. Do you receive one day of rest per week? Yes / No
10. If you work on your day of rest, are you paid time and one-half? Yes / No
11. Have you ever been injured on the job and lost worktime? Yes / No
12. If yes, did you receive any payment while you were out of work? Yes / No
13. Do you have any other question or suggestion?

Survey Questions in Spanish:

1. Nombre
2. Email
3. Teléfono
4. Finca o Granja donde trabaja
5. ¿Trabajas más de 60 horas a la semana? Si / No
6. ¿Pagan tiempo y medio después de superar las 60 horas semanales? Si / No
7. Forma de Pago        Depósito a su Cuenta de Banco / Cheques / Efectivo
8. ¿Cuánto ganas por hora?
9. ¿Recibes un día de descanso en la semana? Si / No
10. ¿Si trabajas en tu día de descanso, te pagan tiempo y medio? Si / No
11. ¿Alguna vez te has lastimado o lesionado en el trabajo y has perdido salario? Si / No
12. ¿Recibiste algún tipo de pago mientras estuviste fuera del trabajo? Si / No
13. ¿Cualquier otra pregunta o sugerencia?

⁴⁸ The 13 other states that require workers’ compensation for all agricultural workers: Arizona, California, Colorado, Connecticut, Hawaii, Idaho, New Mexico, Massachusetts, New Hampshire, New Jersey, Ohio, Oregon, and Washington. Farmworker Justice. Workers’ Compensation. Farmworker Justice, 2022. https://tinyurl.com/cmbvrdrh

⁴⁹ “Lost Wage Benefits.” New York State Workers’ Compensation Board, 2022, http://www.wcb.ny.gov/content/main/Workers/LostWageBenefits.jsp

⁵⁰ “New York State Paid Sick Leave for Farm Workers.” New York State Department of Labor, 2020, https://www.ny.gov/sites/default/files/atoms/files/PSL_Factsheet_Farmworkers.pdf

⁵¹ Bernhardt, Annette, et al. “Broken Laws, Unprotected Workers: Violations of Employment and Labor Laws in America's Cities.” National Employment Law Project, 18 Mar. 2016, https://www.nelp.org/publication/broken-laws-unprotected-workers-violations-of-employment-and-labor-laws-in-americas-cities/; Rebecca Smith, J.D. “Immigrant Workers and Worker's Compensation: The Need for Reform.” American Journal of Industrial Medicine, vol. 55, no. 6, 2012, pp. 537-544. https://doi.org/10.1002/ajim.22033

⁵² “New York State Paid Sick Leave for Farm Workers.” New York State Department of Labor, 2020, https://www.ny.gov/sites/default/files/atoms/files/PSL_Factsheet_Farmworkers.pdf

⁵³ Long Island had one hourly wage rate outlier at $29, which was $4.50 more than the next highest wage. Upstate had one hourly wage rate outlier at $28, which was $10 higher than the next highest wage. These outliers were not included.

⁵⁴ “History of the Minimum Wage in New York State.” New York State Department of Labor, 2022, https://dol.ny.gov/history-minimum-wage-new-york-state