Crispin Hernandez, a farm worker at one of upstate New York’s largest dairies, worked twelve hour shifts, six days a week, in gruelling conditions. Hernandez was tasked with moving cows into milking chutes and sanitizing their udders, working with harsh chemicals that could wither workers’ fingernails. According to the New York Times, to protect themselves, workers had to purchase elbow-length gloves from their employers.

Hernandez wanted to do something, so he called some of his co-workers to a meeting after work hours to discuss protesting their job conditions. But when a farm manager discovered they were meeting, the farm fired Hernandez and another co-worker who wanted to organize. If Crispin Hernandez worked in nearly any other industry, firing him for exercising his right to organize would be illegal under state and federal labor law. The federal National Labor Relations Act (NLRA) and its state equivalent, the New York State Employment Relations Act (SERA) prohibit firing a worker for organizing, joining, or supporting a labor union — but both laws explicitly exclude farm workers. Now, Crispin Hernandez, the New York ACLU, and workers’ centers representing farm workers are challenging that exclusion, arguing that SERA’s exclusion for farm workers violates the New York State Constitution.

Farm workers face low wages and dangerous working conditions. According to the National Farm Worker Ministry, most farm workers have no access to basic labor protections and benefits like health insurance, maternity leave, or workers’ compensation when they’re hurt on the job. Agricultural workers are routinely exposed to poisonous pesticides and forced to work in extreme, dangerous heat. The CDC estimated that, from 1992-2005, crop workers were nearly 20 times as likely to die of heatstroke than the general population of U.S. civilian workers. 78% of farm workers are immigrants and an estimated 6 out of 10 are undocumented, leaving them vulnerable to exploitation by farm managers who threaten workers with deportation if they report hazardous workplace conditions or advocate for better pay. On top of all of this, farm workers are systematically excluded from federal and New York state labor laws.

The NLRA, enacted in 1935, provides for workers’ rights to organize and collectively bargain for fair workplaces. But § 152(3) specifies that the landmark law’s protections for employees “shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home.” Farm workers are similarly excluded from the Fair Labor and Standards Act. Many legal historians “agree that the exclusion of agricultural and domestic employees in the National Labor Relations Act should be understood as part of a pattern of racist exclusio[n]” led by Southern congressmen who sought to exclude the largely black agricultural labor force in the South from the right to organize. (For more background on the racist origins of the farm worker exclusion, check out this article by Professor Juan F. Perea, which chronicles exclusions of agricultural and domestic workers across New Deal legislation). Because the NLRA only covered workers whose labor affected interstate commerce, New York State in 1937 adopted a state equivalent, which extended labor organizing rights to private sector workers in New York who the NLRA did not reach. That law is now known as the New York State Employment Relations Act, or SERA. Because SERA was written to conform to the NLRA, it also excluded farm workers, meaning that the state labor relations law does not prohibit retaliating against farm workers who seek to organize. States can close the farm workers exclusion, which California did in 2011, but legislation to extend SERA’s protections to farm workers has repeatedly stalled in the New York State Senate.

But just a year after SERA’s passage, New York’s 1938 Constitutional Convention added a provision guaranteeing that “[e]mployees shall have the right to organize and bargain collectively” to the state’s Bill of Rights — and the state’s constitutional provision does not have any exclusions. The provision was soon ratified by voters and is now enshrined in Article 1, Section 17 of the New York State Constitution.

Crispin Hernandez and the state ACLU are now taking the state to court, arguing that SERA’s Section 17 protects the right to organize for all workers in New York, including the 60,000 farm workers across the state. NYCLU is also arguing that the exclusion violates the New York State Constitution guarantees of equal protection, due process, and freedom of association. When the suit was filed in 2016, New York Governor Andrew Cuomo declined to fight the suit, agreeing with NYCLU that the exclusion violated the state’s constitution. The New York Farm Bureau, an industry group representing farms, intervened to defend the farm worker exclusion.

Last year, a state court judge granted a motion to dismiss the lawsuit, writing that the state Constitution did not define the term employees and suggesting that changes to SERA “should emanate with” the legislature, rather than the courts. But in June, NYCLU and Hernandez appealed the decision, arguing that farm workers are “clearly encompassed in the plain meaning of the term ‘employee’ and therefore have the ‘right to organize’ as established in Article 1, Section 17.” NYCLU also argues that SERA’s farm worker exclusion infringes on a fundamental right under New York State case law and thus must be subject to heightened scrutiny. You can read NYCLU’s full brief here.

NYCLU’s ongoing case is a promising example of state constitutional litigation to secure economic rights. As federal courts become increasingly hostile to civil and workers rights, movement lawyers may turn further towards state courts — and Hernandez v. New York is a model to watch.



Image Credit: Inside Climate News