If you have employees on your farm, this is a great time of year to review your labor practices to be sure your business complies with current New York State Department of Labor (NYS DOL) rules and regulations. Below you will find a summary of key provisions from New York State’s Farm Laborers Fair Labor Practices Act (FLFLPA), Minimum Wage Order for Farm Workers, Human Rights Law, and HERO Act (source: NYS DOL).
Cornell Agricultural Workforce Development provides additional resources on regulatory compliance with state and federal labor laws.
Minimum Wage
Minimum wage across Upstate NY (excluding New York City, Long Island & Westchester) will rise to $13.20 per hour effective December 31, 2021. The Minimum Wage Order for Farm Workers provides that all workers, with certain exceptions, receive the New York State Minimum Wage. This does not include members of the employer’s immediate family. The Minimum Wage Order for Farm Workers applies only to farm workers employed on farms where the total cash remuneration paid all persons employed on the farm exceeded $3,000 in the previous calendar year.
Overtime
All farm workers, including Foreign Visa workers, must now be paid one and a half times the regular rate of pay for hours worked over 60 in a calendar week.
Day of Rest
Employers must provide at least one day (24 consecutive hours) of rest in every calendar week. The employer must designate, and notify the worker in advance of, their day of rest and, whenever possible, ensure that the day off coincides with a traditional day for religious worship. Farm workers are permitted to voluntarily work on the day of rest, provided the employer pays them at the overtime rate. Employers must keep a weekly record of hours and days worked.
Pay Notice and Work Agreement
Farm operators can use NYS DOL form LS309 “Pay Notice and Acknowledgement for Farm Workers” to satisfy the pay notice provisions of NYS Labor Law and the written work agreement provisions of the Farm Minimum Wage Order. Employers must notify employees in writing if any information in the notice changes. A fillable version of form LS309 is available to download here.
Unemployment Insurance
Farm employers, and farm crew leaders under certain conditions, are required to provide unemployment insurance coverage for their employees. H-2A Foreign Guest Workers are excluded from unemployment insurance coverage.
Workers’ Compensation
Farm employers, owners and operators are required to provide workers’ compensation coverage for their employees, regardless of their annual payroll, and all employers are required to post the mandatory workers’ compensation notice of compliance poster in both English and Spanish. Additionally, farm labor contractors, forepersons and supervisors who receive notice of an injury must notify the employer, owner or operator of the farm where the injury occurred, and employers are prohibited from discriminating against farm laborers who request workers’ compensation claim forms.
Disability Insurance and Paid Family Leave
Farm employers, owners and operators are required to provide New York’s disability benefits (DB) and Paid Family Leave (PFL) insurance coverage to eligible farm laborers. Visit paidfamilyleave.ny.gov for information on PFL employee eligibility and opt-out waivers that employers must give to those who qualify. All employers are prohibited from discriminating against employees who request DB or PFL claim forms. For more information, please call 844-337-6303.
Right to Organize
Farm workers possess the right to organize, which includes forming, joining, or assisting labor organizations, and the right to bargain collectively through representatives of their own choosing. This includes the right to engage in concerted activities (any activity, discussion, or meeting directed at improving terms and conditions of employment, or the group interests of employees), for the purpose of collective bargaining or other mutual aid or protection, free from interference, restraint, or coercion of employers. However, farm workers do not have the right to strike. Farm workers are protected from retaliation, including termination, if they are speaking to each other about labor conditions and organizing. For more information, please contact the Public Employment Relations Board at 518-457-6410 or see perb.ny.gov.
Sexual Harassment Prevention
Every employer in the New York State is required to adopt a sexual harassment prevention policy. The policy must include a complaint form for employees to report alleged incidents of sexual harassment. An employer that does not adopt the model policy must ensure that the policy that they adopt meets or exceeds the minimum standards. Employers must also provide employees with sexual harassment prevention training on an annual basis. NYS DOL provides a model policy, complaint form, and training materials, available here. Additional farm-specific training resources are available from the Sexual Harassment Prevention page on Cornell Agricultural Workforce Development’s website.
Airborne Infectious Disease Exposure Prevention Plan
On September 6, 2021, Governor Kathy Hochul announced the designation of COVID-19 as an airborne infectious disease under the HERO Act. This designation requires all employers to implement workplace safety plans. The NYS DOL, in consultation with the NYS Department of Health, has developed various industry-specific model plans for the prevention of airborne infectious disease. Employers can choose to adopt the applicable policy template/plan provided by NYS DOL or establish an alternative plan that meets or exceeds the standard’s minimum requirements. Employers are required to provide a copy of the adopted airborne infectious disease exposure prevention plan and post the same in a visible and prominent location within each worksite. A template for agricultural businesses is available online at dol.ny.gov/ny-hero-act.