Changes in NYS labor laws
Afew changes are in store for farmers who employ others. New York State Department of Labor Representative Mary Slattery, who directs the Division of Compliance & Education (DOCE), and Kristin Hibbit, a member of the field staff, presented at the recent Labor Road Show in Geneva, hosted by Cornell Agricultural Workforce Development.
DOCE helps employers learn about and comply with labor laws and also helps employees learn about their rights.
Slattery began by noting that minimum wage in NYS (except for Long Island, Westchester County and New York City) is now $16, a 50-cent raise from 2025. (Long Island, Westchester County and New York City increased from $16.50 to $17.)
“Minimum wage is for where the work is performed,” Slattery said. “The new Department of Labor rule sets two pay rates based on skill level and for H-2A workers, based on housing. The employer is responsible to pay at the right rate, even if subcontracted.”
As for Adverse Effect Wage Rates for jobsites with H-2A workers and U.S. workers, Slattery said that the latter at skill level 1 are at $15.88 and skill level 2 are $18.75. For H-2A workers with free housing, skill level 1 receives $13.28 and those at skill level 2, $16.35. The farm labor overtime regulations were enacted on Feb. 22, 2023, which introduced the previous 60-hour threshold for overtime pay to 40 hours/week by Jan. 1, 2032, which allows 10 years for gradually introducing the new ceiling. The threshold as of Jan. 1, 2026 is 52 hours, dropping to 48 in 2028, 44 in 2030 and 40 in 2032. “New York State paid sick and safe leave depends upon the size of the employer, which is the total number of employees employed at one time,” Slattery said.
It is not meant for migrant or H-2A workers, but includes year-round workers and “joint” employees working on contract with other employers or on a farm labor contract. The minimum number of sick leave hours are 40 hours of unpaid leave per calendar year for employers with $1 million or less of net income in the previous year and zero to four employees. For those with more than $1 million in net income in the previous tax year, the employer of zero to four employees is required to offer up to 40 hours of paid sick leave per calendar year. Employers with five to 99 employees must provide up to 40 hours of paid sick leave per calendar year. For those with 100 or more employees, it’s 56 hours of unpaid leave.
“If employees have sick leave time accrued, employers must permit the employees to use the amount of sick leave per calendar year the employer is obligated to provide,” Slattery said. “Employers may choose to provide more paid or unpaid sick leave to their employees.”
She added it’s insufficient to simply post the Department of Labor publication on pay and sick leave. Employers should present the information individually and it’s recommended that employees sign off that they have received and understand the information.
Hibbit offered an example: “If you have 50 employees, you are obligated to provide 40 hours of paid sick leave per year – and just one month into the year, a long-term employee with 100 accrued hours of paid sick leave requests to take 40 hours of paid sick leave,” she said. “If the leave is for an approved use and they provide the proper documentation, you must grant the request.”
The leave must be accrued at a rate not lower than one hour per every 30 hours worked. Or employers may opt to provide at the start of the calendar year the full amount of sick leave that the law demands. But that might lead to problems if the employee doesn’t end up working the number of hours needed to accrue those sick leave hours.
Ag employers can roll over all sick leave hours the following year without any maximum number of hours rolled over or pay the employees the value of the unused sick leave. Employees must agree to whether they want to rollover or receive pay for unused sick leave and they can revoke that choice prior to payment.
“Employers may set a maximum limit on the amount of sick leave hours they are willing to pay out at the end of a year or season,” Hibbit said. “But any accrued sick leave hours which are not paid out to an employee must be rolled over to the following year or season.”
Just as with pay policies, employers must have a written policy on sick leave, even if it’s just the mandatory minimum the law requires. The Department of Labor publication is insufficient.
“Employers must track the amount of sick leave accrued and used by all employees in order to be able to inform employees of their current annual accrual amount,” Hibbit added.
The farm wage order allows employers to “take deductions” or “apply allowances” (synonymous terms) for housing and utilities for workers living at the farm. Allowances are for non-migrant, non-H-2A employees; deductions are for migrants and H-2A workers.
“For employers who provide a meal, an allowance of $1.70 may be taken per meal,” Hibbit said. “For H-2A workers, it must state in the work order” what deductions are taken.
The maximum meal charge per day is $16.28. The ETA-790 must detail the provision of kitchen facilities or three meals per day provided by the employer.
It may be permissible to give a cash advance for food for H-2A workers, but Hibbit advised that employers must get the agreement in writing. These advances should not include things like tools, supplies or uniforms needed for the job.
