Tending an apple orchard might look like a serene endeavor to those who visit at peak harvest time. It’s anything but for Bill Fitzgerald, a fourth-generation Methuen farmer who’s anxiously making changes to comply with federal regulations.
Heeding advice from industry groups, Fitzgerald has started paying overtime to his Jamaican field hands this year, even though federal law exempts agricultural operations from most overtime pay requirements.
He’s not taking any chances, he said. He’s learned that workers become eligible for 1.5 times their usual hourly rate after 40 hours in a work week if they handle even one box of produce from another farm. It is an increasingly common practice for small farmers who rely on other growers to supplement their yields as they meet the demands for fresh produce from Community Supported Agriculture programs, farmers markets, and stores such as Whole Foods.
“I’m scared to death of having a problem” with regulators, said Fitzgerald, who is 57 but said he feels much older due to farm-related stress. “We err on the side of caution.”
Fitzgerald has reason to be extra vigilant this year, as do his fellow farmers in the region. In Massachusetts, Maine, Vermont, and New Hampshire, the US Department of Labor investigated 30 agriculture-related cases involving the Fair Labor Standards Act in the federal fiscal year that ended Monday. That’s up from 12 in the year before, and 18 in fiscal year 2011.
The agency has started the 2014 fiscal year with six new cases under investigation in the four states.
Stakes are high for farmers, who in some cases must pay damages as well as back wages when they settle with the government. One case last year, involving various violations, cost a farmer in the Western Massachusetts town of Whately $305,500, according to the Department of Labor.
Last year, six farmers alerted the Massachusetts Farm Bureau Federation that they were facing overtime-related fines to the tune of $25,000 to $125,000, according to Richard Bonanno, the nonprofit industry organization’s president. He said a five- or six-figure settlement with the government can wipe out two or three years’ worth of profits.
Risk-averse farmers might now be hesitant to collaborate with other growers, Bonanno said, because that’s what can trigger overtime pay requirements. That’s a problem, he said, because farmers increasingly need to work together to satisfy demand from community residents who want to support area farmers but also want more variety than one property can produce alone.
“It’s become more commonplace to work together,” said Bonanno, who works 35 acres at Pleasant Valley Gardens , a vegetable farm in Methuen that has been in his family since 1910. The regulatory environment “has got farmers on edge,” he said. “They don’t know what’s coming.”
The farm bureau and lawyers representing farmers said the government is ramping up enforcement of a little-known, technical provision in a 1938 law. The Department of Labor said no such crackdown is happening; the law and its interpretation haven’t changed, according to Daniel Cronin, an assistant district director for the agency’s Boston office .
That farmers must pay overtime under certain conditions “is an old story that hasn’t been told in a while,” Cronin said. “Agricultural workers typically aren’t working a 40-hour week. It can be 50 or more. So if an issue comes up with overtime, the liability can be large.”
Cronin acknowledged that his department has more resources to put toward farm labor investigations because regional regulators aren’t tied down with big cases. And the 200 farms in northeastern Massachusetts — where he says overtime violations under the labor law have been “extremely rare” in recent years — might be due for a closer look.
“Given that we haven’t had that many cases in the Middlesex and Essex county area,” Cronin said, “it’s likely that we’re going to be doing more cases in that area’’ over the next few years.
Under federal rules, an operation is deemed agriculture, and therefore exempt from overtime-pay requirements, when it involves raising or harvesting crops. However, it’s reclassified as another type of enterprise — such as wholesaling or retailing — if the operation involves selling crops from another farm. A worker who handles produce grown on another property becomes eligible for overtime pay after 40 hours, even if most of the week is spent working in the farm’s fields.
“It’s common that if a truck comes in, everybody just unloads it, and it might take 20 minutes,” Bonanno said. “It normally would work that way, but now you have to say, ‘No, you can’t go touch that truck.’ Farmers have no choice because the extra overtime would kill them.”
Advocates for farm workers have for years lobbied for stricter wage enforcement, and said they are finally starting to see action by the Department of Labor. In its first three years, the Obama administration conducted almost 10 percent more agriculture investigations than occurred in the prior three years under President George W. Bush, according to an analysis by Farmworker Justice , a Washington-based advocacy group.
Now local farmers are simply paying the overtime rates that they should have been paying all along, according to Bruce Goldstein, president of Farmworker Justice.
“The rules have been clear for decades,” Goldstein said. Employers may be complaining that it’s unfair for the Labor Department to start taking action against violations of the law that it had ignored in the past, he said. “If that’s their line, which I suspect it is, it’s not a good excuse.”
Agriculture has been exempt from overtime pay requirements, Bonanno said, because the work is seasonal. The logic: Workers put in long weeks for a few months of the year, but then they work less in the off-season so everything balances out.
Cronin noted that some nonseasonal businesses, such as auto dealerships and movie theaters, also have exemptions from overtime pay requirements for certain jobs. He declined to comment on why some industries are exempt and others aren’t.
Farms in northeastern Massachusetts face particularly stiff challenges in terms of compliance, Bonanno said. Because these farms tend to focus on produce, rather than livestock or dairy, they’re labor-intensive and must navigate a maze of labor rules. They also rely largely on nonfamily sources of labor, including the foreign guest worker H-2A program, which comes with its own complex set of rules.
As local farmers brace for increased scrutiny, they’re continuing to make adjustments. Bonanno said he’s careful about who handles any crops that arrive from another farm for his CSA program. Often he’ll handle those boxes himself, or assign a part-time worker to the task.
At Mann Orchards in Methuen, Fitzgerald said unclear regulations are making it harder for him and his sons, Matthew and Joshua, to maintain the family business. But they’re not giving up. Their solution will be to find efficiencies, he said, and constantly improve.
“If I want to think about it negatively, it’s another nail in the coffin, but I don’t want to think about it negatively,” Fitzgerald said. “It’s another challenge: We’re forced to become better at what we do.”
G. Jeffrey MacDonald can be reached at firstname.lastname@example.org.