On February 21st, the United States District Court for the Western District of New York will hear arguments in NYSVGA v. Hochul. This case is an existential threat to the rights of thousands of New York State farmworkers including hundreds of farmworkers on H2A visas in upstate New York.
Background: When basic New Deal era federal labor laws were written in the 1930s, farmworkers were excluded from the right to organize unions. In 2019, the State of New York passed the Farm Laborers Fair Labor Practices Act, which rectified this injustice by extending the right to organize to farmworkers in the State of New York. Under the terms of this law, farmworkers in New York are able to unionize once they demonstrate a majority of workers support unionization. Once a farm is certified by the State of New York’s Public Employee Relations Board (PERB), it requires employers to enter into union contract negotiations.
Organizing Wins: Since the 2019 law, the UFW, the nation’s largest and oldest farmworker union, has been organizing in New York. The UFW has so far won 5 certifications, representing nearly 500 farmworkers. The unionized farms are: Wafler Farms (Wolcott, NY), Porpiglia Farms (Marlboro, N.Y.), Cahoon Farms (Wolcott, NY), A&J Kirby Farms (Albion, N.Y.), and Lynn-ette & Sons Farms Inc. (Kent, N.Y.). Furthermore, the UFW has filed for certification at two additional farms.
Workers Grievances: The majority of the workers at these farms are H2A workers but this lawsuit would impact all NY farmworkers. The H2A agricultural guest worker program has expanded dramatically in recent years, and accounts for a significant portion of New York farmworkers, (approximately 12,000 of the 82,000 NY farmworkers) yet the H2A visa system is inherently exploitative. Under the H2A system, a worker’s visa and housing is dependent on their employer. There is no pathway to citizenship under the H2A visa, no matter how many years a worker has been returning on it. Worst of all: whether or not you are called back next year is up to the whim of the employer. It’s like at-will employment, but instead of just getting fired, you also get deported. If anything, workers with H2A visas are even more vulnerable than undocumented workers. This is why farmworkers in New York wanted to join the UFW – to even the playing field with their employers and to negotiate into a union contract some measure of protection for their jobs and visas.
Grower Retaliation: Since the UFW went public on its organizing campaign with its first 5 certifications, New York growers have fought against union recognition at every turn. Agricultural employers have retaliated against unionized workers, have interrupted union meetings, and have even sought to not recall pro-union workers. But worst of all has been the lawsuit from the New York growers that seeks nothing less than to strip the right to a union from all NY farmworkers. The grower lawsuit argues that the H2A visa precludes workers on such a visa from being included under New York’s 2019 Farm Laborers Fair Labor Practices Act – despite the U.S. Department of Labor saying otherwise and New York state legal precedent making clear that no worker can be denied labor rights due to their farmworker status t. It’s the same pattern of racist exclusion that saw farmworkers denied the right to organize in the 1930s – and New York growers are trying to continue that exclusion today.
The stakes of this lawsuit could not be higher. This lawsuit threatens the labor rights of the thousands of NY farmworkers. This lawsuit threatens the nearly 500 workers whose employers are attempting to strip them of the union rights they already used. This lawsuit threatens H2A workers across New York who will effectively be barred from labor rights by legal precedent if this lawsuit succeeds. And this lawsuit threatens the entire labor movement – which cannot succeed for as long as entire categories of workers in America are excluded from the most basic right to organize.