New York Opens the Gate for Farm Worker Organizing
On June 19, 2019, the New York State Legislature passed the Farm Laborers Fair Labor Practices Act (“Act”), an amendment to the New York State Labor Law, which will have broad and significant implications for farms throughout New York State.
Under the Act, farm laborers are now considered “employees” under the New York State Employment Relations Act (SERA). “Farm laborer” is defined as “any individual engaged or permitted by an employer to work on a farm, except the parent, spouse, child, or other member of the employer’s immediately family.” SERA provides “employees” the statutory right to organize and collectively bargain, establishes an administrative framework to protect those rights, regulates the collective bargaining process, and provides a forum to resolve labor disputes.
Under the Act, farm laborers also are granted overtime pay equivalent to at least one-and-a-half times their regular rate of pay after 60 hours of work in one week. A Farm Laborers Wage Board will be established to provide recommendations on overtime for farm laborers. Farm laborers also are entitled to 24 hours of consecutive rest each week, but the laborer may choose to work on the scheduled day off. The Act likewise extends, among other things, unemployment insurance coverage, Paid Family Leave and workers’ compensation benefits to farm laborers.
Just prior to the passage of this Act, in Hernandez v. State of New York, the New York State Supreme Court Appellate Division, Third Department, held that SERA’s exclusion of farm laborers from its definition of “employee” was unconstitutional as a matter of law. In response to the plaintiff farm laborers’ action against New York State, the State advised that it did not intend to defend the constitutionality of SERA’s farm laborer exclusion. New York Farm Bureau, Inc. (“Farm Bureau”) therefore moved to intervene as a defendant. The State later interposed an answer advising it intended to join plaintiffs in arguing that the SERA farm laborer exclusion is unconstitutional.
The Farm Bureau moved to dismiss the action, and the trial court granted the motion. The Appellate Division, Third Department, however, reversed. In its decision, the Third Department focused on the text of the New York State Constitution and held that the constitutional right to organize and collectively bargain applies to anyone who constitutes an “employee” under the plain and ordinary meaning of that term, including farm laborers. SERA’s exclusion of farm laborers therefore was unconstitutional as a matter of law.
This Act and decision likely will have significant consequences across New York State’s agricultural community. A labor movement by farm laborers could, for example, affect the ability to produce perishable goods or prevent farms from harvesting or yielding crops necessary to sustain their operations. Farms also will experience increased costs associated with farm laborer schedule and wage changes.
If you have any questions as to maintaining a union-free workforce or labor organizing in the agriculture industry, please contact any of the attorneys on Phillips Lytle’s Labor & Employment Practice Team. The attorneys regularly advise clients regarding lawful union avoidance strategies and work with clients to oppose union organization efforts.