Policy Recommendations

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 antiretaliation 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.