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It’s been nearly eighty years since the New Deal banned collective bargaining rights for farmworkers. Now, its honorees are the plaintiffs in labor’s next legal long game

Issues Justice

This summer, farmworkers and farmworker advocacy groups made big news across the country. California passed an historic farmworker overtime bill (but not without caveats—a work week on the farm lasts 60 hours), while Texas commemorated the 50th anniversary of a 490-mile march led by striking melon farm employees demanding better wages and clean drinking water.  

In New York, a 200-mile march from Long Island to Albany punctuated a pair of legal tangles that have been in the works for years: a constitutional challenge calling for farmworkers’ rights to collective bargaining, and a comprehensive Fair Labor Practices Act that has been in limbo since 2008. Both are the result of efforts by a handful of advocacy groups and farmworker-activists, which the Food Chain Workers Alliance honored at the first ever Food Justice Awards in New York City last week. 

Two of four awards went to major players in the New York fight for collective bargaining rights–Crispin Hernandez, the plaintiff in the lawsuit, and Donna Lieberman, executive director of the New York Civil Liberties Union.

Food justice advocates, by their very nature, fight to get fair food on the table every day. And even during a summer when labor issues got some good air time, their work has largely gone unnoticed. Honoree Kolu Zigbi, program director for sustainable agriculture and food systems at the Jessie Smith Noyes Foundation, summed it up: “It’s not going to be the farmers’ markets and the CSAs that really transform and make a just food system. It’s the workers.”

The awards ceremony and the summer’s legal victories are encouraging mile markers in the decades-long battle for equal rights on the farm, but labor advocates can’t clock out now. They’ve got to do more than address familiar, hot-button issues involving undocumented workers and deportation. It’s about changing a paradigm that was put into place way back in the 1930s, when FDR was in the White House and the New Deal was taking shape. It’s something of a willfully accepted reality—at least in the mainstream–that farmworkers endure some of the toughest working conditions in the nation. They work long days, often in extremely hot weather, and they’re sometimes dependent on their employers for housing. The work pays the minimum-wage, often sub-minimum. In New York, farmworkers don’t have the right to overtime pay or a day of rest. 

It’s easy to assume these conditions prevail because so many workers are undocumented or don’t have full citizenship status and fear employer retaliation. Farmer advocacy groups like the Farm Bureau don’t discourage this type of thinking, answering questions about why they oppose collective bargaining by pointing to their stance on immigration reform

Immigration status certainly plays a key role in the nation’s agricultural labor force—as many as 70 percent of farmworkers are undocumented, according to some estimates, though no one knows the exact proportion. But rights for farmworkers have been written out of federal and state constitutions since the 1930s, when the labor force looked very different.

In 1935, as part of the New Deal, the FDR administration passed a law that guaranteed the right to collective bargaining for all workers—except for people who worked on farms or in domestic service. “In order to get the votes of the Dixiecrats, the southern Democrats, to pass the National Labor Relations Act, FDR agreed to cut out a group of workers that, at that time, was primarily black,” New York Civil Liberties Union (NYCLU) executive director Donna Lieberman explained to the audience at the Food Justice Awards last week.

Three years later, in 1938, the federal Fair Labor Standards Act, which was enacted to address the needs of the predominant labor forces in construction and manufacturing, set the minimum wage at 25 cents, the workweek at 44 hours, and banned child labor–but also excluded farmworkers from the right to overtime pay. That same year, an amendment to the New York State constitution affirmed the right to collective bargaining for all workers. But the New York State Labor Relations Act later excluded farmworkers. 

Flash forward nearly eighty years. Not much has changed. Farmworkers still aren’t guaranteed much of anything by the federal government, and the states have been slow to update their laws. California (arguably the most progressive state in the union with regard to farmworkers’ rights, and where collective bargaining has been legally protected since 1976, largely due to the efforts of Cesar Chavez with support by then and current governor Jerry Brown) passed this summer’s farmworker overtime provision only after then-Governor Arnold Schwarzenegger vetoed a similar bill in 2010. And New York’s Farmworker Fair Labor Practices Act, which would guarantee a day of rest and overtime pay, has been languishing in the New York State legislature since 2008. 

It’s not going be the farmers’ markets and the CSAs that really transform and make a just food system. It’s the workers.”

But workers and advocates in New York did win a major victory in May of 2016. The NYCLU, Workers’ Center of Central New York, and the Worker Justice Center of New York joined forces alongside plaintiff Crispin Hernandez to sue Governor Andrew Cuomo and Attorney General Eric Schneiderman for the right to collective bargaining. Cuomo quickly announced he wouldn’t fight the lawsuit. That meant he agreed with the plaintiff—in this case, Hernandez, a former milker on an upstate dairy farm. Hernandez claimed he was fired for meeting with labor rights advocates and activists on the farm, where he lived, during non-working hours.

Normally, an announcement like Cuomo’s would mean the party pressing charges wins by default. That’s what happened in California, when the state refused to defend Proposition 8, the constitutional amendment banning same-sex marriage (and, in that case, the state’s support meant overturning Proposition 8 and restoring the right to same-sex marriage for Californians). 

But when the named defendant declines to fight a lawsuit, another interested party can step in. For example, if farmers in New York who oppose collective bargaining want to band together to defend the case in place of Governor Cuomo and Attorney General Schneiderman, they’re allowed file for something called intervenor status. Which is exactly what the New York Farm Bureau did in mid-June.  The New York State Supreme Court has yet to hand down a verdict on the Farm Bureau’s request. “If we are granted intervenor status, we will seek a right to dismiss the case,” says Farm Bureau representative Steve Ammerman. “We’re still in the waiting game—We haven’t heard anything at all. It could’ve happened the day after we filed to seek intervenor status, and it’s been over a month. We were hoping to have heard by now.” 

The Farm Bureau’s argument mirrors the case made in California for farmworker overtime pay a few months ago. The Bureau says that allowing workers collective bargaining rights would hurt small-scale farms, and its press release notes that Bureau members’ ability to continue to produce food “would be harmed.” 

The constitutional challenge in New York has a long way to go before it becomes law. But the Food Justice Awards serve as a reminder that we’ve also come a long way: Increasingly, equal rights are on the table. 

“Remember when we used to talk about food workers, and the funny looks you used to get? Remember all those long form food articles that somehow couldn’t find a line to talk about workers? Remember those gigantic food conferences where the only way a food worker could get in was if they were serving the food?” Brandworkers director Daniel Gross asked the audience at the Awards.

Heads nodded. “We still have a long way to go, sisters and brothers, but we are living in a very different world. You can’t be a serious thinker, writer, scholar of food without incorporating worker voice.”

H. Claire Brown

A North Carolina native, Claire Brown joins The New Food Economy after working on the editorial team at Edible Manhattan and Edible Brooklyn. She won the New York Press Club's Nellie Bly Cub Reporter award in 2017. Follow her at @hclaire_brown.