In September 2015, New York farmworker Crispin Hernandez was fired after his employers saw him talking with local workers’ rights advocates. But instead of backing down, Hernandez filed suit against the state. And if he prevails, it could help transform the often dangerous and unjust workplace conditions that farmworkers face to put food on all of our tables.
Officially filed May 10, 2016, Hernandez v. State of New York demands that the state provide the same constitutional protections to farmworkers as it does for other workers. Right now, according to the New York state constitution, all employees have the right to organize and bargain collectively via representatives of their own choosing. However, the state’s worker retaliation protections specifically exempt farmworkers — in other words, it’s currently not illegal for employers to retaliate against farmworkers who attempt to organize for better working conditions. And that lack of protection against retaliation is in clear opposition to farmworkers’ constitutional organizing rights.
Fortunately, just hours after the New York Civil Liberties Union (NYCLU) filed Hernandez’s lawsuit, New York Gov. Andrew Cuomo announced that his administration would not fight the suit, saying in a statement: “I agree with the NYCLU that the exclusion of farm workers from the labor relations act is inconsistent with our constitutional principles, and my administration will not be defending the act in court. We will not tolerate the abuse or exploitation of workers in any industry. This clear and undeniable injustice must be corrected.” Cuomo’s statement is an encouraging sign in and of itself, said Aadhithi Padmanabhan, the NYCLU lawyer representing Hernandez and his co-plaintiffs, the Workers’ Center of Central New York and Worker Justice Center of New York.
However, this summer, the New York Farm Bureau, a lobbying group (not a state or public agency despite the official-sounding name) officially filed to intervene on the case and argue on behalf of the farmworker exemption. A decision on whether the bureau will be allowed to do so is still pending.
“This would be a huge victory,” Padmanabhan told me, referring to the possibility of the court ruling for Hernandez and the worker centers. “It would mean that New York is recognizing these workers who’ve been invisible for so long. …People like Crispin are so brave to put themselves on the line like this — it’s a huge leap for workers like him to take this kind of risk and fight for their rights. This is their victory.”
‘It was the perfect case of worker retaliation for organizing’
Hernandez’s lawsuit stems back to an incident involving one of his co-workers at Marks Farms in Lowville, New York, a large dairy farm that produces about 340,000 pounds of milk every day and generates an annual gross income of $28 million.
According to Rebecca Fuentes, lead organizer at the Workers’ Center of Central New York, which has been spearheading farmworker outreach on New York dairy farms for years, one of Hernandez’s co-workers was enjoying his day off in March 2015 when his employer asked that he report to work because the farm was short-staffed. The worker wanted his day off but he couldn’t afford to risk his employment and went in. Later that same day, an altercation between the worker and his supervisor occurred in which the worker was physically assaulted. Hernandez was working in the milking parlor that day and could hear the commotion — he ended up waiting with the injured worker while arrangements were made to get him to a hospital.
In the aftermath, Fuentes said, the workers’ center helped the injured worker file official complaints with local police and OSHA. (Not surprisingly, she said, the farm blamed the worker for the incident.) A little more than a month after the incident, the Workers’ Center of Central New York as well as the Worker Justice Center of New York, along with farmworkers, organized a protest outside of Marks Farms that attracted dozens of participants and called for an end to abusive workplace conditions.
Not long after the protest, Hernandez, who had joined the Workers’ Center of Central New York in 2014, became actively involved in an effort to organize a workers committee at Marks Farms. In the meantime, however, Hernandez’s involvement with the worker center began attracting negative attention from his employers.
According to the lawsuit, Hernandez first began working at Marks Farms in April 2012 and rented housing that was also owned by his employers. At the time of the spring 2015 worker assault, Hernandez was working typical 12-hour shifts, six days a week. The lawsuit reads:
The work he performed as a milker was very intense and physically demanding. Although he was supposed to have a thirty minute meal-break during his 12-hour shift, Mr. Hernandez, like other milkers, often had less time because of the constant pressure he was under not to fall behind or damage the quality of the milk product. He also would often go the entire shift without taking a break for water or using the bathroom because he wanted to do a good job and he worried he would not be able to complete all that was required of him during his shift if he took a break that lasted even a few minutes.
In July 2015, for the very first time, Hernandez asked for an unscheduled day off. His request was granted and he used the time off to attend a workers’ center meeting. Immediately following, according to the lawsuit, Hernandez was shifted to a less desirable work assignment as a “relief” worker, filling in when fellow workers were off or on break. Then in August 2015, Fuentes traveled to the farm at the request of Hernandez and fellow workers who wanted to form a workers committee. During that meeting, workers discussed the health and safety risks they faced on the job, such as the failure of their employer to provide them with personal protective equipment.
That meeting was cut short when a Marks Farms supervisor showed up, demanding that Fuentes leave and calling the police. According to the lawsuit, the police began interrogating the workers about why Fuentes was there and if they had invited her. (Keep in mind that while the workers live in housing owned by the farm, they pay rent and have the right as tenants to invite guests into their homes.) Eventually, the police left, the meeting with Fuentes resumed and workers agreed to continue their efforts to create a workers committee at the farm. Shortly after, some of the workers dropped out of the organizing effort, but Hernandez stuck with it.
On Sept. 1, 2015, Hernandez was fired and told to move out of his home within the week. After the firing, the lawsuit states, Hernandez’s former co-workers were asked to sign a form stating they did not want Fuentes to visit their homes and were told that Fuentes was working to put the farm out of business.
“It was retaliation,” Carly Fox, a worker rights advocate with the Worker Justice Center of New York, told me. “It was the perfect case of worker retaliation for organizing.”
‘The bigger point here is building worker power’
“Without farmworkers there would not be milk, fruits or vegetables, but we are treated like slaves and worse than the cows. We want to be able to improve our working conditions without fear or intimidation. We believe our lives are important and that all human beings deserve to be treated with dignity and respect.”
That’s a quote from Hernandez, whose lawsuit might finally give New York farmworkers a real opportunity to organize without fear for safer working conditions, fair wages and dignity on the job.
“It’s a huge victory for workers like Crispin,” Fuentes said of the worker-led lawsuit. “It’s been a lot of work for him — just imagine the pressure with his name on a lawsuit like this.”
According to OSHA, farm work is among the most dangerous occupations in the nation, with nearly 6,000 agricultural workers dying from work-related injuries between 2003 and 2011. That’s a fatality rate that’s seven times higher than for all other private-sector workers. About half of the country’s farmworkers are Hispanic and many are undocumented, which easily opens the door to abuse, exploitation and wage theft. New York, in particular, is home to about 80,000 to 100,000 seasonal and dairy farmworkers.
For years, Fox told me, advocates such as herself as well as workers have been calling on New York policymakers to pass the Farm Workers Fair Labor Practices Act, which would reverse farmworkers’ exemption from state labor laws and give farmworkers the right to overtime pay, guaranteed time off, and expand employer contributions to workers’ compensation and unemployment. State lawmakers have yet to enact the legislation, though both Fuentes and Fox said their organizations are continuing to push for its passage. However, if Hernandez wins his case in court and farmworkers gain formal protection from retaliation, organizing efforts may have a much better chance at securing such worker benefits directly from employers.
In particular, the lawsuit is asking the court to rule that farmworker exclusions from retaliation protections are unconstitutional — “this exemption discriminates against a historically disenfranchised group of people and violates their right to equal protection,” Padmanabhan said. If that exemption is eventually struck down, it will mean farmworkers can begin filing retaliation complaints with state oversight officials, she said.
“It’s a big deal that the governor has said he will not defend (the exemption) in court, but the real victory will be when workers like Crispin actually have access to their rights,” Padmanabhan told me.
In the event that the New York Farm Bureau is allowed to intervene in the lawsuit, she said “we’ll have a live case and we’ll have to take it from there.” The possible benefit to allowing such an intervention is that the bureau will be forced to defend the discriminatory exemption before a judge and the final ruling would be binding on the bureau, she noted.
“(The bureau) voiced its opposition to the lawsuit when we filed it, so it’s not surprising that they would try to fight it,” Padmanabhan said.
But even if Hernandez wins in court, both Fox and Fuentes said farmworkers still face an uphill battle toward safer, fairer workplaces.
“The bigger point here is building worker power — they are at the front and center of these actions,” Fox told me. “Whether there’s a union or not, workers are going to organize. So if we gain these protections, it’ll be another tool that we can use. But what’s really important is holding government accountable, pushing for new laws, pushing for new strategies. This lawsuit isn’t the end.”
To learn more about the farmworker lawsuit against New York, visit NYCLU or the Workers’ Center of Central New York. And for more on the conditions facing New York dairy farmworkers and their efforts to improve workplace conditions, read our previous coverage here.
Story update: As of Monday, Oct. 24, the New York Farm Bureau was granted permission to intervene in the Hernandez lawsuit. In a statement, the bureau said it would be filing a motion to dismiss the case.
Kim Krisberg is a freelance public health writer living in Austin, Texas, and has been writing about public health for nearly 15 years.