Crispin Hernandez was 19 in 2015 when he was fired from Marks Farms in Lowville, allegedly for trying to meet with organizers about worker conditions. Now he is the lead plaintiff in a case brought by the New York Civil Liberties Union that demands New York recognize the right of farm workers to unionize.
“We farmworkers are excluded from labor laws and labor protections,” Mr. Hernandez said, speaking to the times through a translator as he primarily speaks Spanish. “We are looking for the right to unionize, to one day of rest per week and for worker protections.”
Mr. Hernandez’s case is currently before the Third District Appellate Court in Albany after it was dismissed by Albany County Supreme Court in January 2018.
Under state labor law implemented in 1937, agricultural workers are exempted from the right to unionize. The NYCLU said the law, which imported federal Depression-era protections for workers into state law, was designed to be discriminatory as many farm workers at the time were black. The exclusion remains in place, impacting farm workers who primarily migrate from Mexico and Central America.
The Farm Bureau, which is defending the case, claims the law is not discriminatory as there is a legitimate reason for the carve-out — labor disputes, especially strikes, can risk crops and livestock in the time sensitive industry.
“Back in 1937 and now, the exemption has a logical basis,” said Brian Butler, an attorney with Bond, Schoeneck and King who is representing the Farm Bureau. “There are a number of different factors that show the exclusion of farm workers is rational ... all the allegations of discriminatory intent are unfounded, completely unfounded.”
The first judge to review the case agreed, dismissing it and leading to the current appeal.
When Mr. Hernandez first brought the suit in 2016, Gov. Andrew M. Cuomo and then-State Attorney General Eric T. Schneiderman agreed with the NYCLU and declined to defend the law in court. The New York State Farm Bureau then stepped in, filing for permission to defend the constitutionality of the law.
“The Farm Bureau looked at (the suit) as a measure to bypass the Legislature,” said Mr. Butler.“(The Bureau) felt it was there role to intervene to defend the propriety of the statute.”
Mr. Hernandez sees the right to organize as fundamental.
“This is a right farm workers deserve — from the 1930s to today, for years and years, we have been excluded,” he said.
Mr. Hernandez cites abuses of farmworkers, including wage theft and lack of training on dangerous equipment.
“There are farmworkers who work 80, 90, hours a week, 12 to 13 hours a day,” Mr. Hernandez said. “And then they receive minimum wage.”
He said the argument that preventing collective bargaining for workers to avoid disruption is justified is just a cover for the Farm Bureau.
“Really, they want farmworkers to stay in the dark,” he said.
Mr. Hernandez and his attorneys point to the New York Constitution, which enshrines the right to organize — “Employees shall have the right to organize and to bargain collectively through representatives of their own choosing,” read the 1938 amendment.
“We are not asking for anything new, we are asking for what is in the constitution,” Mr. Hernandez said.
But Mr. Butler said that the amendment was intended to protect the 1937 labor law, exclusions and all.
“They set it down in the constitution to preserve the rights that existed at the time,” Mr. Butler said. “The constitutional amendment didn’t provide an unqualified right.”
Ultimately the decision on whether or not the carve-out is discriminatory and abides by the state constitution rests with the court.
In the meantime, Mr. Hernandez is also supporting a legislative solution to allow organizing of labor on farms, the Farmworker Fair Labor Practices Act (A04189/S02721 in the last legislative session), which ends the carve-out for agricultural workers. It would guarantee them collective bargaining rights, one day off a week and overtime pay.
“Right now farm workers don’t have an authentic voice in their workplaces,” Mr. Hernandez said. “Farm workers deserve more and we want that to be recognized in the Senate.”
The Farm Bureau is arguing in court that unionizing for farmworkers is a matter for the Legislature, and on a political level, they are arguing that such legislation would be detrimental. Mr. Hernandez and his supporters are arguing that the right to unionize is fundamental, and should be recognized by both the court and the Legislature.
Both sides point to the importance of agriculture in the state — Mr. Hernandez said all the apple orchards and dairies in the state would not exist without farmworkers, while the Farm Bureau said these same industries would not exist without farmers. Both point to the need for continuous labor — the Farm Bureau to argue that unions would be disruptive, farmworkers to argue that the extraordinary labor requires full worker protections.
“Collective bargaining can be very difficult when it comes to agriculture,” said Steve Ammerman, Farm Bureau manager of public affairs. A strike “can be disastrous for a farm.”
The NYCLU counters with other states that have allowed unions for farmworkers without destroying the industry. California, for example, has unionization for agricultural workers, as does New Jersey.
“The agricultural industry (in California) is working just fine,” Erin Beth Harrist, an attorney with NYCLU who is working on Mr. Hernandez’s case.
The Farm Bureau says that other states’ experiences may not be relevant in New York, and farmers are already struggling with high costs and low prices for their goods.
“Food can be produced much more cheaply in other states and other countries,” Mr. Ammerman said. “It’s clearly going to make things incredibly difficult on our farms.”
But Ms. Harrist said the law can be adjusted — it is not an all-or-nothing proposal.
“There are ways to exclude seasonal produce” from labor disruptions, for example, she said.
Mr. Ammerman said the Farm Bureau wants all farm workers to be treated well, but he said the bureau thinks the protections in place at the moment are sufficient.
“If they’re not paying, if there’s issues with wages, if there’s issues housing, there are legal recourses,” he said.
Mr. Hernandez thinks the protections are too weak.
“We are asking to be treated with respect, and we ask the Senate and Assembly to recognize that,” he said. In the meantime, Mr. Hernandez is working to improve conditions for workers now. He now works for Workers’ Center of Central New York, the organization he met with in 2015 before he was fired.
“We are working to educate workers on their rights, make sure they get their back pay,” he said. “Farmworkers do really important work, and we want that work to be recognized.”