Under a late afternoon sun, a half dozen workers carefully select and trim back the tree branches in a peach orchard and pile the branches in paths running between the crop rows.
The workers, all of them Mexican nationals, earn a half dollar an hour above the state’s $9-an-hour minimum. They are provided a cell phone, housing, and utilities, including cable television, all paid for by their boss, Jim Bittner, an owner of Bittner-Singer Orchards in the Niagara County town of Appleton.
Bittner says his crew is happy and has been returning largely intact for years. “I like to think we’re a preferred employer,” said Bittner, who serves as chairman of the New York Farm Viability Institute and is president of the Niagara County chapter of the New York Farm Bureau. “We have a long growing season. They can start working for me in March and go all the way to the first of November. And they have good housing. They love that.”
Photo by Brendan Bannon
Soon, though, things will become more complicated. A state minimum wage hike, the pending Farmworkers Fair Labor Practices Act, and a New York Civil Liberties Union lawsuit that would grant farmworkers the right to unionize—a challenge supported by Governor Andrew Cuomo and state Attorney General Eric Schneiderman, the two men with the most power to stop it—are combining to pose a threat to the way that Bittner and farmers across the state operate.
New York farmers were already facing difficult decisions on which crops are worth the cost. The added labor expenses will phase out some crops more quickly—potentially making locally grown fruits and vegetables less available—accelerate the adoption of new technologies on some farms, and cause others to shut down, Bittner said. For his orchards, sweet cherries, a fruit with volatile pricing, will be the first to go.
Reducing the number of employees will become a more pressing goal, both to keep costs down and, should workers win the right to organize, to limit the potential damage from strikes or other labor organizing tactics. If workers were to strike during harvest time, an entire year’s worth of work could be lost.
“The administration was looking at this to raise people out of poverty,” Bittner said. “Well that’s just fine, but there’s fewer jobs.”
While Bittner and other farmers in New York worry about how the added costs will impact their business, activists, organizers and politicians have long been voicing concerns that farmworkers, many of them migrants, are being exploited.
The crux of this fight is founded in laws established in the 1930s. At the state convention in 1938, all employees were guaranteed the right to organize, with a provision added to the state’s bill of rights stating that labor not to be considered a “commodity.”
But two years prior, the state Employment Relations Act was signed into law, a provision of which excludes farmworkers and other classes of labor from being considered employees, denying them the right to organize. The exemption also excluded farmworkers from labor laws that guarantee them overtime pay, a day off and other rights afforded to most other classes of workers. The logic from the farmers’ point of view was that since the work is seasonal, those workers need to get all their work for the year done in a short period and will be idle during winter months.
Now, with the minimum wage hike passed and the NYCLU lawsuit going forward, workers rights advocates and legislators pushing the Farmworkers Fair Labor Practices Act feel as emboldened as they have in years.
Last month, on the day the Cuomo administration announced its decision to not fight the lawsuit, workers, advocates and legislators rallied on the steps of the state Capitol. A week later, advocates and politicians began a march from Long Island to Albany to bring attention to the legislation.
While the proposed legislation has existed in some form or another for decades, the current version, sponsored by Assemblywoman Cathy Nolan, whose district is in Queens, has been batted around the Legislature for six years.
It has passed in the Assembly repeatedly, but the bill has failed to make it to the Senate floor for a vote. And with Republicans still in control of the chamber, the proposed law will likely have a tough time again this year. It is now in the Senate Finance Committee, where it died last year.
State Senator Adriano Espaillat, the bill’s Senate sponsor, remains hopeful. If it were to make it to the floor, he believes it would have the necessary support to pass. Including Espaillat, the bill has 29 sponsors and co-sponsors. Additionally, Republican Senators Joseph Robach and Carl Marcellino helped vote the measure out of the Labor Committee, and Senate Majority Leader John Flanagan sponsored a similar bill himself in his Assembly days.
“We’re three votes away,” Espaillat said.
Still, farmers and their advocates insist that the changes would have a negative effect on already overburdened businesses.
State Senator Rob Ortt, a Republican whose district spans the largely rural counties of Niagara and Orleans and a small part of Monroe County, opposed the state minimum wage hike, though he ultimately voted for it after his conference was able to negotiate a slower implementation upstate. When the Cuomo administration announced it would not fight the NYCLU lawsuit, Ortt called the legal action a downstate attack on a way of life that New York City activists and politicians don’t understand.
The Farmworker Fair Labor Practices Act—which Ortt says farmers call the “Farm Death Bill”—is another attack of the same kind. These actions, he says, represent a movement toward an environment that will drive many farmers to give up and retire or even cause their businesses to fail.
“I think it’s really misguided and I think it’s really designed by someone who doesn’t understand the nature of farming and farm labor and how farms are operated,” Ortt said.
But Espaillat said that it is Ortt and others like him who “don’t understand.”
While farmers see their concerns as practical, Espaillat views the current laws as a stain on the state’s progressive image, as they are holdovers from a time when racist policies explicitly allowed for workers of color to be paid less than their white counterparts.
“Five decades or more after the West Coast did away with this stuff, we’re perpetuating the last residue of Jim Crow,” Espaillat said.
Photo by Brendan Bannon
While anyone who has driven through New York has seen its corn fields and dairy farms, the state’s large agricultural industry is frequently overlooked.
New York farmers are responsible for more than $5 billion a year in economic activity, according to figures from the state Comptroller’s office, but their output is dwarfed by agricultural behemoths like California and Florida.
And so, Ortt says, that attitude is sometimes reflected in the way the Cuomo administration and Legislature view agriculture.
“It’s such a huge part of our economy,” Ortt said. “Even though it’s often located or centered in less populated areas, the bottom line is it is one of the most important parts of our economy, not only across the state, but across the country.”
The Cuomo administration has provided some support for farming. This year more than $300 million has been allocated for various grants, loans and other programs aimed at providing capital, preserving farmland and offering tax relief to farmers.
As the Legislature negotiated a higher minimum wage, farmers were granted a tax break as part of the deal. For each worker that logs more than 500 hours during the year, farms will receive an escalating tax break, starting at $250 per employee and ending at $600 per employee when the minimum wage reaches $12.50 an hour in areas outside of New York City in 2021.
Abby Fashouer, an administration spokeswoman, said in an email that Cuomo believes he can protect farms and farmworkers alike.
“This administration is committed to the continued growth of the state’s agricultural industry, while at the same time ensuring equal rights and equal pay for our farmworkers,” Fashouer said. “It defies common sense that these employees would be intentionally excluded from the legal and protected right to organize without fear of retaliation, which is afforded to other workers in New York.”
Espaillat, too, pointed to the myriad programs available to farmers—he said he votes in favor of more than 60 bills a year that benefit agricultural businesses—arguing that the subsidies provide a way for them to stay competitive while also protecting the rights of workers.
“The agro business is subsidized in a handsome way by New York state,” he said.
Still, farmers argue, the new rules work to compound the ever-mounting challenges they face, government-fueled or otherwise.
While New York’s $9 hourly minimum wage already exceeds its biggest nearby agricultural competitors—Michigan at $8.50, Ohio at $8.10 and Pennsylvania at the federal minimum of $7.25—that gulf will only grow as the wage hike is phased in.
Bittner said Pennsylvania apple packers are already calling to convince him it will be cheaper for him to ship his apples to and from their facility just across the state border than to have them packed in his regular packing facility one town over.
“We’re not an island,” Bittner said. “I’ve got to compete against Pennsylvania, Ohio, Michigan everyday. You’re putting us at a disadvantage. They just don’t see that.”
Efforts from the Cuomo administration to provide loans, grants and tax breaks to the industry and encourage young farmers to continue working their family’s business or start farms anew are not likely to be enough to offset the number of farmers getting out of the business, Bittner added, voluntarily or otherwise.
California remains a major competitor for New York farmers, with West Coast fruit making its way via train from Walla Walla, Washington, to Rotterdam, New York, every day.
“Our advantage is we have a little bit lower labor cost (than California) and we’re closer to market,” Bittner said. “That’s our advantage. You start bumping up our costs, all of a sudden we’re not going to compete.”
Photo by Brendan Bannon
Another point on which the two sides sharply disagree is the treatment of workers.
For years the Daily News has published stories of farmworker abuse. In 2014, one farmworker told Al Jazeera America that he had been abused, while several others described subpar living conditions, denial of medical treatment when injured and physical abuse. Crispin Hernandez, the lead plaintiff in the NYCLU lawsuit, claims he was fired from the Marks Farms dairy operation in the foothills of the Adirondacks after working with advocates and seeking to discuss labor issues with other employees.
Advocates say they frequently meet with people who are not always receiving the full protection of the law. Carlos Gutierrez, a health and safety trainer at the Tompkins County Workers’ Center, says that while real abuse is going on at some farms, the larger problem is less extreme but more common.
Simple steps like proper safety training and practices are often overlooked, he said, sometimes because the farmers feel like there is not time to go through all the training and safety measures.
But farmers are also working under the understanding that their workers will not go to the authorities – and many times, they are right, with most migrant workers reluctant to interact with the greater public regardless of their immigration status, Gutierrez said.
“They are basically staying away from anything that’s going to bring light to them,” he said.
As part of his work, Gutierrez often goes to farms and asks workers to recount stories of injuries that they had suffered or that they had witnessed. While many farmers operate with good intentions, Gutierrez said, the issues are real and in some cases serious abuse is occurring.
“Not everybody is that way, but it is a prevalent problem,” he said.
However, stories from both sides are difficult to corroborate. Most workers’ main focus is keeping their jobs, and for many of them that means staying out of public view. A visit to the hospital, with the worker’s name appearing in a news report, or a complaint filed with the state could very well end with a firing, or worse: jailing and deportation.
Both farmers and advocates say that many workers are so desperate to avoid interactions with authorities or public scrutiny that they will pay people to cash their checks or buy their groceries.
Around Bittner’s orchards, which abut Lake Ontario, his workers are particularly nervous, even though he says they are all here legally, with an abundance of border patrol agents in the area.
“These guys don’t want to go to town,” Bittner said. “They’re going to get stopped and they’re going to get harassed every time.”
Farmers, though, say that abuses are few and far between and that they are being painted in an unfair light when most have good relationships with their employees.
County inspectors visit his workers’ housing at least a few times a year and farms are subject to regular labor inspections from the state and county. With laws in place to protect farmworkers, any of the abuses being described in the stories should be prosecuted, Bittner said.
“If that’s true,” Bittner said, “somebody needs to go to jail or somebody needs to be charged.”
Back in his peach orchard, the evening sun casting shadows across his bespectacled face, Bittner wonders what the future of agriculture in New York might look like if the challenges for farmers—higher labor costs, more encroachment from other states—continue to pile up.
The work is already hard, and while most people do it because they love to work the land, there must be a breaking point, he says.
“Nobody in their right mind would invest in a farm because nobody works cheaper than a farmer,” Bittner said. “The return, historically, is not that good.”
Nearby, his apple orchards stretch from the road straight down to the beach along Lake Ontario. The weather conditions change so rapidly as the winds rip in off the lake that workers have to pick the apples in stages, creating a gorgeous progression of colors with the spring buds coming in.
Most of the farmers Bittner has ever known to retire with a sizable fortune have done so by selling off fields to developers for many times their purchase price.
He may be next in line to follow in that trend, he says.
“We have lake frontage,” Bittner said. “Maybe we have houses that go there. Maybe that’s the crop.”
Justin Sondel is a reporter for City & State, a content partner with The Public.