A dozen farm workers at Pindar Vineyards in Peconic, New York, successfully formed the first union of farm workers in the state with RWDSU/UFCW Local 338 when the New York State Public Employees Relations Board certified their union on Sept. 27.
One of the farm workers, who requested to remain anonymous for fear of retaliation, spoke about the years they’ve spent working on the farm, most of the time for minimum wage, without any benefits, employment protections, and often without safety protections from pesticides, heat, and the grueling nature of working on a farm.
“Work can start as early as five in the morning during peak season, and if there’s an issue with the machines, sometimes we have to make up for the missed work the next day, where we could be working until 7 or 8PM at night,” the worker said. “We’re looking for respect because we’ve been waiting a long time and we’ve never seen any type of benefits, so I hope that this opens up the door for us to get some type of benefits.”
Among the major concerns for the new union to address, workers emphasized the need for paid holidays, paid time off, and reducing the long work weeks to 40 hours (or at least negotiating to be paid overtime after 40 hours of work—current state law for farm workers mandates overtime begins at 60 hours a week).
“I’ve worked sometimes up to 75 hours a week, and once I receive my paycheck, all that hard work, it’s not reflected in it,” said a second farm worker.
In New York, labor unions and workers fought for decades to pass the Farm Laborers Fair Labor Practices Act in July 2019, which granted farm workers the right to collectively bargain and to receive workers’ compensation and unemployment benefits, among other rights.
“It was a terrible exclusion when labor laws were written in this country, which excluded … coverage for farm workers, often based on racial context, [because] when labor laws were first enacted in this country, most farm workers were African American,” said Stuart Appelbaum, the president of the Retail, Wholesale and Department Store Union, which advocated for the New York State law and has organized agricultural industry workers for years. “What these workers did in coming together and creating the first union in New York is a real inspiration to other farm workers, to workers everywhere, and I think that this is just the start.”
Farm industry groups opposed the law and have launched legal assaults with the hope of delaying or preventing labor protections for farm workers, including successfully pushing for a ‘no strike’ clause in the farm workers’ legislation and opposing lowering the overtime threshold from 60 hours per week to 40 hours per week.
Farm workers were deliberately written out of US labor laws
When the National Labor Relations Act was passed in the US in 1935, agricultural workers were exempted from the protections it provides for workers who organize or join a labor union, and agricultural workers were left outside the jurisdiction of the National Labor Relations Board.
This racist exclusion was a compromise made with elected officials in the Jim Crow-era US South who explicitly wanted to keep subjugated a workforce that, at the time, primarily consisted of Black workers. Farm workers can still form unions, but they have little recourse or legal protections to bind employers to negotiate with unions or prevent them from retaliating against workers.
Many would perhaps be shocked to learn that these Jim Crow-era exclusions persist today, with only a few states having extended collective bargaining rights to agricultural workers. To this day, the majority of states in the US deny equal labor protection laws to farm workers, including collective bargaining rights. Though current US labor laws provide employers with significant power to interfere in union organizing efforts and infringe upon workers’ right to unionize, labor unions and elected officials have been pushing for reforms to close existing loopholes. The problem is that US labor law is a veritable Swiss-cheese block filled with loopholes.
For instance, agricultural workers were also excluded from the 1938 Fair Labor Standards Act until 1966, when an amendment included agricultural workers in minimum-wage provisions, but farm workers are still not provided protections such as overtime pay.
The estimated total number of farm workers employed in the US is around 1.7 million. In 2020, more than 213,000 workers were employed through H-2A temporary work visas, while an estimated half of US farm workers are undocumented immigrants.
Not including employees with H-2A work visas, the unionization rate in the agricultural industry, estimated at 1.7% (about 21,000 workers) in 2020, is among the lowest in the country.
These workers are paid some of the lowest wages in the US labor market, averaging around $14.62 an hour (the average hourly wage for all workers in the US is $28.78). Moreover, workplaces in the agriculture sector are some of the most hazardous for fatal and non-fatal injuries. These workers are also disproportionately susceptible to wage theft, sexual abuses and harassment, and retaliation.
A new wave of farm worker organizing
Farm workers around the US have been fighting to expand labor protections at the state and federal levels.
“In the last couple of years, we’ve seen the first significant wave of action since the 1970s of farm 4rworkers demanding and winning basic labor protections,” said Paul Sonn, National Employment Law Project state policy director. “It’s still an impediment to farm work organizing, the fact that when they collectively bargain, they have to fight for some of the basic protections that most other workers are guaranteed automatically.”
Sonn cited a list of recent victories, including the passage of the Farm Laborers Fair Labor Practices Act in New York (2019), overtime laws for farm workers in Washington (2021) and California (2016), the Farm Workers Bill of Rights in Colorado (2021), as well as OSHA developing heat protection standards for workers and ongoing efforts to pass legislation to expand labor protections for farm workers in Massachusetts, Oregon, and at the federal level.
Pineros Y Campesinos Unidos del Noroeste (PCUN), a union of farm workers in Oregon, has been organizing on several fronts to expand labor protections for farm workers in the state and around the US, including fighting for overtime pay for farm workers in Oregon and protections from heat and smoke, and educating workers on how to respond to dangerous working conditions caused by heat and smoke.
“A lot of us see farm worker overtime as a crucial stepping stone to bringing collective bargaining to our state capitals,” said Reyna Lopez, executive director of PCUN. “Farm workers can no longer subsidize America’s agricultural system. We need to be paid living wages. The farm worker overtime campaign is one means to getting there. But there’s a lot of hunger to organize, and people are pretty fed up.”
Undocumented, H-2A visas, and migrant work
The program has received criticism for inefficiencies and for not providing legal pathways to citizenship for those who are working under visas or are undocumented, which enables exploitative practices by employers (and workers whose paychecks and ability to stay in the country rest on the whims of said employers have few options but to accept their exploitation).
“Most farm workers are not going to speak up if they are in fear of deportation if their livelihood is sitting in the hands of their employer,” said Lopez.
According to Beth Lyon, clinical professor of law at Cornell University and founder of the Farmworker Legal Assistance Clinic, many of the clinic’s clients have claimed it is more appealing to work as an undocumented farm worker than to work through the H-2A visa program. Why? Because the visa is tied to employment, giving workers no ability to change employment if conditions are unbearable, and because there is so little support, and so few legal resources, for immigrant workers.
“It’s a program that’s permanently temporary. If you come ten times, ten years in a row, and do your job perfectly, you’re back at square one when you go home for the offseason,” said Lyon. “You have no right to bring your family, no right to any pathway to permanent status. Every single time it’s a permanent probation for your job, so if you raise any questions or assert your rights in any way, you’re going to probably go on a list of workers who are troublemakers and won’t get invited back the next year.”
Ongoing battles to expand labor protections for farm workers
California Gov. Gavin Newsom vetoed AB 616 in September 2021, which would have allowed farm workers in the state to vote by mail-in union elections, as other workers are able to do. The veto was praised by industry groups opposed to the legislation—the same industry groups that also opposed 2016 legislation to expand overtime rights to farm workers in the state.
“The veto is really upsetting,” said Giev Kashkooli, political and legislative director for the United Farm Workers. “Farm workers have to get the same equal rights in voting in union elections that other Californians have in their elections.”
According to Kashkooli, United Farm Workers plans to continue pushing for the legislation to return to Governor Newsom’s desk, and the union has refuted the claims Newsom’s office has made publicly on why he vetoed the bill in the first place.
This is the second large loss farm workers in California have endured this year. The US Supreme Court also ruled against a California law that enabled union organizers to enter farms to speak with workers during and outside of work hours, a state law that was initially enacted to fill some of the gaps from federal labor laws enacted in the 1930s that exempted farm workers from union organizing protections.
“It’s a new Trump-controlled Republican majority. The US Supreme Court and that majority decided to prioritize property rights over human rights, and they made that decision, overturning 46 years of precedent,” added Kashkooli.
At the national level, the United Farm Workers are advocating for immigration reform to provide a pathway to citizenship for farm workers.
No current framework for organizing farm workers
For decades, labor groups and unions have fought to improve working conditions, wages, and labor protections for farm workers around the US. As union membership has declined throughout the US workforce, including among farm workers, some of the largest farm worker unions have adapted to providing a wide range of services for farm workers and their communities, while also leading efforts to enact legislative reforms to improve conditions, wages, and rights for farm workers.
“There’s no framework for organizing farm workers like there is for private sector or public sector workers who all have collective bargaining laws,” said Baldemar Velasquez, President and founder of the Farm Labor Organizing Committee (FLOC), an affiliate of the AFL-CIO.
Velasquez started working on farms in the US with his family around the age of five and was expected to carry the load of an adult worker when he was around 9 years old. (Child labor remains common throughout the US agricultural industry, especially under systems where workers are paid piece rates rather than hourly wages.)
He explained many farm workers are often working in rural areas presided over by local and state governments that are very hostile toward unions, and many farm workers are vulnerable and lack labor protections due to their undocumented immigration status or H-2A visas.
Velasquez also noted a lack of enforcement of current labor protections, such as minimum wage laws, which are frequently violated in the agriculture industry. The solution, he argued, is to develop systems where workers have a framework to organize, represent themselves, and serve as their own daily inspectors on the job. The presence of labor unions, for instance, has been linked to higher likelihood of OSHA enforcement in workplaces.
FLOC utilized this framework for decades, which has been replicated by other labor groups, such as the Coalition of Immokalee Workers, to develop and negotiate labor contracts for workers within supply chains at large corporations such as Campbell’s Soup in the 1980s, Mount Olive Pickles in 2004, and the Fair Food Program, which has enlisted big buyers like Walmart, Burger King, McDonald’s, and Whole Foods.
“In our experience with FLOC, we were able to create the framework for bargaining by going to the buyer, not the employer, to get multiple parties in the supply chain around the bargaining table,” added Velasquez. “You have to have the ability to compel the entire supply chain to create a more equitable distribution of the wealth that is produced by the people on the bottom.”