Exemptions to Minimum Wage and Overtime Law for Farms
That’s right. The exemptions fall under the Fair Labor Standards Act (“FLSA”), which New York’s Labor Law follows (see 12 NYCRR 142-2.2). Sections 213(a)(6) and 213(b)(12) of the United States Code provide these exemptions.
The exemption under Section 213(a)(6) is the broadest and causes employers the most confusion. It states that if you are a farm that did not, during any calendar quarter of the preceding calendar year, utilize more than five hundred (500) “man-days” of agricultural labor, then you need not pay your workers (that are engaged in agricultural labor) minimum wage OR overtime.
Many employers are unsure what qualifies as a “man-day” and incorrectly calculate a man-day by counting the number of hours worked by an employee in any given week. A man-day is actually defined as any day in which an employee performs any agricultural labor for not less than one hour (i.e., if the employee worked half an hour one day, that day is not counted; she needs to work for an hour or more for the day to be counted). Therefore, if an employee worked 40 hours in a week spread over the course of only 4 days, then we would count only 4 man-days toward the 500 man-day calculation, which ends up being a lot less than counting the numbers of hours an employee has worked. The other good news is that family members such as spouses, children, or other members of the farm owner’s immediate family are excluded from the man-day calculation. Therefore, many farms that thought they were over the 500 man-day calculation and didn’t qualify for this exemption may be pleasantly surprised when they actually work the numbers.
Another important thing to note about the 500 man-day exemption is that the relevant time period for making this calculation is the preceding calendar year, not the current year in which the employee is being paid. Thus, if a claim is being made in 2017 for failure to pay minimum wage and overtime this year, we would look to the calendar quarters of the year 2016 to see if the employer qualifies for the exemption. In this example, the employer must have used less than 500 man-days in each calendar quarter (i.e., the whole year can add up to more than 500 man-days, but each three (3) month period cannot) to qualify for the exemption. Section 213(a)(6) contains other exemptions to the payment of minimum wage and overtime such as where the employee is an immediate family member or when the employee is principally engaged in the range production of livestock.
The exemption in Section 2(13(b)(12) is only for the payment of overtime. It covers any employee employed in agriculture. “Agriculture” under FLSA includes farming in all its branches and, among other things, includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities, and the raising of livestock, bees, fur-bearing animals, or poultry. Therefore, anyone employed in agriculture must be paid NYS’s minimum wage for each hour worked (unless covered by the 500 man-day exemption discussed above) but is not required to be paid overtime even for hours worked over forty (40) hours in a given week.
An agricultural employer should take care to document the days and hours worked by all employees not only to take advantage of these exemptions but also to comply with NYS Labor Law, which requires the maintenance and retention of these records for a period of six (6) years. These records are also important evidence that can be used to an employer’s benefit in a lawsuit for failure to pay minimum wage and overtime.
Jennifer S. Echevarria is an Associate with the firm and practices Immigration and Employment Law including U-Visas and wage violations. She is bilingual in Spanish and can be reached by phone at 866-303-9595 toll free or 845-764-9656 and by email.