January 23, 2018


NYCLU to Appeal Dismissal of Farmworkers' Right-to-Unionize Suit


The dismissal “will not deter us from making sure that farmworkers enjoy the same basic rights as every other hardworking New Yorker,” said Donna Lieberman, the NYCLU’s executive director.


The New York Civil Liberties Union will appeal a decision that dismissed its legal challenge aimed at giving state farmworkers the right to unionize, saying in a statement that “we will not rest until farmworkers are free to organize and have a voice in their working conditions.”

The dismissal “will not deter us from making sure that farmworkers enjoy the same basic rights as every other hardworking New Yorker,” said Donna Lieberman, the NYCLU’s executive director.

Erin Beth Harrist, an NYCLU senior attorney and lead counsel for plaintiffs, added in the statement issued last week that “because of an outdated law, the people we rely on for the food in our kitchens are condemned to poverty, abuse and even death [because of poor and dangerous working conditions]. We will appeal this ruling and continue to fight this law, which violates our constitution and our state’s commitment to human rights.”

The vow comes after Albany Supreme Court Justice Richard McNally earlier this month dismissed the NYCLU’s state constitution-based challenge to a carve-out of farmworkers from a 1937 legislative act that said state workers may organize and collectively bargain.

In its 2016 lawsuit, the NYCLU, representing terminated farmworker Crispin Hernandez and related workers’ rights groups, argued that the carve-out was a discriminatory, “Jim Crow-era” exception inserted into the law at a time when farmworkers were predominantly African-American. Citing equal protection and due process principles, the group contended that the exemption was illegal, as it was meant to preclude blacks from the progressive labor reforms of the New Deal and to appease Southern Democrats, according to the court.

But in his opinion, McNally disagreed with the NYCLU’s contention. He wrote that “the plaintiffs … have not demonstrated that the Labor Law statues are racially discriminatory or that farmworkers are a suspect class entitled to constitutional protections.”

At the same time, he focused the bulk of his ruling on both legislative intent and the proper separation of powers between the legislative branch and the courts. McNally noted that the intervenor-defendant in the lawsuit, the New York Farm Bureau, had argued that giving farmworkers “collective bargaining [rights] would create a disproportionate hardship for farmers due to the seasonality of their labor forces, the perishability of their products and the low prices farmers receive for their goods,” and, therefore, there was a legitimate legislative reason for the farm laborers carve-out. Moreover, the Farm Bureau, a volunteer organization focused on solving issues facing the agricultural industry, had also pointed out that attempts to repeal the farm laborer exemption had failed in the Legislature for many years.

McNally ruled that it should be lawmakers’ decision to change that exemption and not the court’s.

“A court’s objective  in construing  a statute is to discern and apply the will of the legislature, not the court’s own perception of what might be equitable,” he wrote, citing Matter of Perry v. Novello, 99 NY2d 180 (2002) and Matter of Sutka v. Conners, 73 NY2d  395 (1989).

He added that Article 1, Section 17 of the New York State Constitution provided in relevant part that, “Employees shall have the right to organize and to bargain collectively through representatives of their own choosing,” but never defined the term “employees.”

Yet, “Labor Law § 701(3) define[d] the term employees and detail[ed] those employees who are exempt.” Moreover, “Article 1 Section 17 did not create new bargaining rights for those employees who were expressly excluded by the NLRA [National Labor Relations Act] or the SERA [New York State Employment Relations  Act],” McNally said.

“Any changes to the SERA should emanate with the New York State Legislature,” he ruled, citing separation of powers principles.

In a rare move, Gov. Andrew M. Cuomo and Attorney General Eric Schneiderman had agreed in 2016, when the NYCLU filed suit in Crispin Hernandez v. New York Farm Bureau, Inc., Intervenor-Defendant, 2143-16, that the state would not fight the action. And the governor has said that “because of a flaw in the state labor relations act, farm workers are not afforded the right to organize without fear of retaliation—which is unacceptable.”

But the Farm Bureau sought to intervene in the lawsuit, and the NYCLU and plaintiffs did not object.

Bond, Schoeneck & King partner Brian Butler, representing the Farm Bureau, could not be reached for comment Monday. Nor could representatives of the Farm Bureau itself.

The NYCLU had no further comment on Monday.

According to the NYCLU, many farmworkers in New York State earn wages well below the poverty level and live in overcrowded “labor camps with sweatshop-like conditions.” The NYCLU further contends that farmworkers ”are excluded from workplace protections afforded to nearly all other workers, including a day of rest, overtime pay, disability insurance and the right to organize without retaliation.”

“Farmworkers operate dangerous machinery at grueling rates and use toxic chemicals, often without enough training,” the NYCLU also claims, noting what it says is an exponentially higher fatality rate than other workers in New  York.