Groundbreaking Reforms Could Finally Grant Protections to Farmworkers

Many harvests have passed since the passage of the nation’s first modern labor laws, and all that time, generations of farmworkers have been shut out of bedrock federal labor standards, such as overtime pay and collective bargaining. But New York’s farmworkers may soon see a new dawn for labor rights, as lawmakers consider groundbreaking reforms and the courts open the door to unionization.

On May 23, a landmark appeals court ruling effectively extended collective bargaining rights to the agricultural workforce under state law. Advocates want to take it further: They are pushing for a total overhaul of state labor law. The Farmworkers Fair Labor Practices Act (FFLP) would allow farmworkers overtime compensation, a standard workweek with one day off, disability pay, improved workplace health and housing standards, and unemployment benefits. The bill has been repeatedly introduced and failed, but there’s renewed hope that a new Democratic majority in both chambers, plus the boost from the court ruling, will finally bring the bill’s passage this year.

The state appellate court’s decision effectively invalidated a blanket exemption of farmworkers from the State Employment Relations Act. Labor rights advocates had sued in 2016 to challenge the exclusion — imposed during the New Deal, when farm labor was mostly done by Black farmworkers — as a violation of the right to organize, as well as the constitutional rights of due process and equal protection. Agricultural workers have always constituted some of the poorest, most disenfranchised workers in the state. The groups that spearheaded the lawsuit, the Workers’ Center of Central New York and Worker Justice Center of New York, argued that collective bargaining rights for farmworkers were a matter of both constitutional imperative and social justice.

The New York Farm Bureau, representing agribusiness interests, argued that farm laborers could not be considered employees under New York’s labor law. But the court took a more expansive reading of the law, applying a “plain” definition for “employee” that it said was consistent with the basic intent of the constitution: “When the term ‘employees’ is given its natural and ordinary meaning, we think it clear that the constitutional right to organize and collectively bargain extends to individuals employed as farm laborers.”

Often relegated to precarious and irregular employment, farmworkers are on par with the state’s lowest-wage service workers. According to a 2016 survey of Latinx dairy farmworkers by Cornell University researchers, the starting pay for farmworkers statewide averaged just above the minimum wage of the time, $9 per hour, and overall wages averaged about $10.30, with an average workweek of around 68 hours. Many were experienced workers, with two to 10 years in the fields. Meanwhile, the agricultural sector is an economic powerhouse for the state, yielding some $5.4 billion in sales annually.

The agricultural sector is also the site of some of New York’s most unsavory labor practices: In testimonies that were aired at public hearings in 2018, workers described everyday injustices they faced on the job, from broken bones to sexual harassment.

Victor Hernandez, a dairy worker from Guatemala, recalled that he and his coworkers were “expected to work 13 hours straight, seven days a week, sometimes working 95 hours a week, without being able to eat or anything” other than an occasional piece of fruit stashed in their pockets. At a previous cattle ranch job, he said he suffered five major accidents at work but never once got medical help from his employer.

Ana Santamaria, a 43-year-old who worked 12-hour days at a floral greenhouse, testified in 2017, “If there is an accident at work, they bring us to a clinic and they pay for the appointment and the medicine. There hasn’t been medical insurance, but this week they came to offer it to us and deduct it from our pay.”

One of the lead plaintiffs in the case, Crispin Hernandez, recalled that when working at a dairy in Lowville, New York, he was denied proper medical care after a cow smashed his hand. He also witnessed a coworker getting churned up by a machine, after receiving inadequate training. And he described the crushing pressure of his milking schedule:

It does not matter that the weather is 20 below zero, or that there is snow and rain. A farmworker needs to be available to work 24 hours a day. Sometimes, the employer would arrive to check on us, after we had been working for many hours. He would come in shouting at us. He did not see us as human beings. In general, in this sector of agriculture, they do not see us as humans and they exploit us. The owners treat cows better than the workers.

Hernandez realized just how truly tenuous his job was after one of his coworkers was assaulted by a manager. When Hernandez began protesting and organizing with his coworkers to form a union, he said, his employer retaliated by firing him and several coworkers in 2015.

The New York law would aim to protect workers from these types of harm. It would follow the model of California’s 1970 farmworker law, which first expanded collective bargaining rights to the fields and paved the way for the United Farmworkers to unionize across the state. Yet even if workers do gain formal collective bargaining rights, their actual labor clout will be limited, since the agricultural labor force is largely seasonal, relying on temporary and undocumented migrant workers and short-term “guestworkers” on specialized visas.

But given the possibility that the decision could be reversed on appeal, advocates are still looking to the legislature to directly codify equal labor rights for farmworkers.

Librada Paz, a former farmworker turned organizer, said she hoped the favorable court ruling — which could soon be appealed — will not undercut the legislative campaign’s momentum. “I just don’t want them to use it as an excuse [to say], ‘We have rights for the workers,'” she said. “Definitely, we want the whole thing to happen for the workers — not just the collective bargaining, but also for them to have a day off, to have overtime, all those things that they need — because, of course, we’re not going to give up the fight.”

The Farm Bureau, meanwhile, is aggressively opposing the bill, claiming that the overtime provision alone would cost farms about $2 billion in gross farm sales, and raising alarms about the dangers of labor disruption “when dealing with perishable food and animals that need to be milked and cared for.” In light of the intrinsically unstable nature of farm work, the Farm Bureau argues, “limiting hours or having workers walk off the job because of a strike are not feasible.”

However, New York isn’t on untrodden territory, since nationwide, farmworkers’ rights are governed by a patchwork of state laws that often depart from the restrictions of the federal labor law. Over the years, some states, such as California, Colorado, Maine and Hawaii, have extended collective bargaining rights to farmworkers, sometimes with restrictions such as mandatory arbitration in some cases. Some states also provide disability pay and overtime. (California, for example, is just starting its overtime phase-in, in contrast to New York’s law, which would extend full overtime immediately.)

Established agricultural labor unions include California-based United Farm Workers — which pioneered the modern-day farm labor movement under Cesar Chavez — and the Farm Labor Organizing Committee, which focuses on improving conditions for tobacco workers in North Carolina and the Midwest. Yet nationwide, less than 1 percent of the farm workforce is unionized — a reflection of the precarity of the seasonal migrant workforce, which includes many visa-based short-term “guestworkers” as well as informally employed undocumented workers.

But while unions have waned in the fields, a crop of innovative worker centers has sprung up, developing grassroots strategies to tackle the supply chain more systematically than traditional labor contracts. While New York’s worker centers have fought for legislative reform, the Coalition of Immokalee Workers in Florida and the Vermont-based worker center, Migrant Justice, have campaigned for vertical labor agreements that tackle the whole supply chain — engaging farm owners, producer associations, food brands and retailers in a program that guarantees fair wages and labor conditions for workers.

Closing the longstanding gap in labor protections for farmworkers would have a historical resonance in New York. The bill would complement a breakthrough law that New York passed in 2010: the Domestic Workers’ Bill of Rights, the first fair-labor law for domestic workers. Like farmworkers, domestic workers were another sector pointedly excluded from the New Deal labor law: Both workforces were at the time largely poor and Black, and both have similarly become dominated by low-wage migrant workers in the postwar era. However, the farmworker legislation goes beyond the domestic workers’ law in offering collective bargaining rights — the right to organize and collectively bargain was considered in the lead-up to the domestic workers legislation but ultimately never included.

Jose Chapa, a coordinator with the Justice for Farmworkers Campaign, said that, if passed, the current reform proposal “would essentially make New York probably one of the best states [with] laws like this for farmworkers in the country.” He acknowledged that the instability endemic to the migrant workforce could limit the potential for collective bargaining. At the same time, he added, “some of that vulnerability would be hopefully dismantled by a law such as this, which would provide a protection for workers that haven’t been able to be protected under the law.”

For Victor Hernandez, the Guatemalan-born worker who suffered through a 95-hour workweek, the bill is a vital official acknowledgement of undocumented workers’ human rights: “Like so many other immigrants, we work and we pay taxes; in our checks they take out taxes and at the end of the year, we do not see any of that returned to us…. We all deserve dignity.”

Farmworkers may not be ready yet to unionize across the state, but at least the seed has been planted for enshrining their right to do so. After 80 years in the shadows, and decades of organizing in the fields, the farmworkers’ movement is starting to flourish.