June 23, 2020 update: The U.S. Supreme Court ruled that farm owners can limit union organizers’ access to their property, a move that may be “a potentially mortal blow” to the United Farm Workers union.

In recent weeks, New York’s Senate has held hearings on legislation that would grant farmworkers in the state the right to organize and demand better wages and conditions. The Farmworker Fair Labor Practices Act would amend a state law that specifically excludes farmworkers from collective bargaining rights.

The bill would also extend overtime pay, disability, and worker compensation benefits to agricultural laborers in the state.

Simultaneously, a lawsuit filed by a former New York dairy worker argues that the labor law that excludes farmworkers violates the state constitution. A state appellate court’s decision on the case is expected in the coming months.

But while advocates extol extending labor protections to farmworkers, the scarcity of farmworker unions across the country signals how difficult organizing agricultural workers can be, even in states with friendly laws—this despite the fact that wages and conditions in the fields have improved little.

Unions in the U.S. have seen a decline over the past few decades and legislative assaults on union power and collective bargaining rights have also become increasingly common. And yet, pro-labor activity is also on the rise—most notably with the Fight For $15 movement, with many non-union members striking and protesting for a higher minimum wage. The situation in the fields reflects this complexity.

Today’s farmworkers face nearly as many challenges as they did 50 years ago. In addition to low wages and little to no job security, they experience high rates of poverty, food insecurity, sexual harassment, and mental health challenges. The group has one of the lowest unionization rates of any sector and only four farmworker unions exist today, covering just a tiny fraction of the more than 1 million hired farmworkers who toil on American farms and dairies. And, with the growth of the agricultural guest worker program that brought in more than 240,000 H-2A workers last year, an even smaller percentage of farmworkers are backed by a union.

Workers harvest produce at Cottingham Farm in Easton, MD. (Photo CC-licensed by Keith Rutowski/Chesapeake Bay Program)

At the same time, there have been a number of state-level policy wins that may not have been possible without the work of the big three farmworkers unions, the United Farm Workers (UFW) in California, Pineros y Campesinos Unidos del Noroeste (PCUN) in Oregon, and the Farm Labor Organizing Committee (FLOC) in North Carolina. And, in states like New York and Washington, the possibility of smaller decentralized unions that meet their members’ needs on a local scale might be seen as a sign of positive things to come.

Historically Excluded and Unprotected

Federal and state laws have long excluded farmworker from labor protections. The National Labor Relations Act of 1935, which forbids employers from firing a worker for joining, organizing, or supporting a labor union, specifically excluded farmworkers and domestic workers. Many of those workers were, at the time, African American.

Farmworkers were also excluded from The Fair Labor Standards Act, enacted in 1938, which guarantees other workers a minimum wage, overtime pay, and other protections. In 1966, the act was amended to partially include agricultural workers in the minimum wage provisions. But 60 years later, farmworkers are still not eligible for overtime pay. The law also offers fewer protections to child agricultural workers than to children in other industries. And those who work on smaller farms are not eligible for the federal minimum wage, which currently stands at $7.25 per hour.

Some do earn a lot more than that per hour. Workers who are paid piece rate—based on how many buckets or bags they pick—can, if they are fast pickers, earn much more than the minimum wage. And some workers get paid an hourly rate that’s higher than the minimum wage. But since farm jobs are seasonal and most farmworkers don’t work year-round, their annual earnings are meager.

In addition, most farmworkers lack other basic labor protections such as workers’ compensation, health insurance, and disability insurance. Some states like New York, following the federal government’s lead, have exclude farmworkers from its labor laws. Only a handful of states have enacted legislation that protects the organizing and collective bargaining efforts of agricultural workers. A few states, such as California, have also extended overtime pay and other protections to them.

The bottom line: although federal and state laws don’t explicitly forbid farmworkers from unionizing, they withhold labor protections that make unionizing easier. In a state where bargaining isn’t specifically protected, farmworkers may decide to form a union, but an employer does not have to negotiate with them and can retaliate against the workers.

Because of all this, convincing farmworkers to unionize has never been more difficult. “This isn’t steady year-round employment where workers can get together and have a consistent campaign. When farmworkers organize, it’s often on an isolated farm. And due to a lack of documentation, employers have huge leeway to exploit workers and create an atmosphere of fear,” said Justin Flores, vice president of the Farm Labor Organizing Committee in North Carolina. “Because of all that, traditional labor has deemed agricultural workers un-organizable and has not dedicated campaigns to them. So only a few crazy people historically have been dedicated enough to run a farmworker union,” added Flores.

Young farm workers join in solidarity and fast for passage of the Fair Treatment of Farm Workers Act in front of the California State Capitol in Sacramento. (Photo CC-licensed by Randy Bayne)

Nonprofit organizations have stepped in to help farmworkers secure labor rights in other ways. The Coalition of Immokalee Workers in Florida runs the Fair Food Program, under which growers improve work conditions, including protections against sexual harassment and modern-day slavery. Big retailers and food chains have signed legal agreements committing to buy only from those growers who follow the strict standards. Migrant Justice in Vermont created the Milk with Dignity program, which establishes labor and housing standards for Vermont dairies that supply Ben & Jerry’s ice cream company. Farmworker Justice in D.C. represents farmworkers in court and advocates and lobbies for laws. And farmworker legal services across the nation also have been instrumental in helping stem abuses and recoup wages.

Still, some experts say, organizations that focus on helping individual workers, or even small groups, don’t bring about widespread changes in labor practices and laws in the way that only unions can.

Flagship Union Struggles to Organize Workers

The best-known farmworker union, The United Farm Workers (UFW)—founded by iconic leaders Cesar Chavez, Dolores Huerta, and Larry Itliong—has over the past few decades faced declining membership and challenges in winning new contracts.

In its heyday in the 1970s, the union boasted more than 200 contracts that covered about 70,000 members in California, Florida, Washington, Texas, and Arizona. Today, membership has dropped to about 8,000 members, and just 33 contracts, most in California and a few in Oregon and Washington state, said UFW spokesman Marc Grossman.

California’s unique 1975 law, the Agricultural Labor Relations Act, gives workers the right to participate in collective bargaining without retaliation. A special board conducts, oversees, and certifies union elections, and investigates unfair labor practices. Despite this law, the number of elections held by the UFW has dwindled. In 2017, when the head of the board resigned, he described the Act as a “dream statute” that is none the less “irrelevant to farmworkers because for the most part they are not aware of the provisions, procedures, and rights contained in the law.” He goes on to say that this is because less than one percent of the agricultural labor force is now represented by a union.

United Farm Workers members march for comprehensive immigration reform in Salinas, CA. (Photo CC-licensed by Steve Rhodes)

According to the UFW, there are a number of reasons why California’s half a million farmworkers no longer turn to the union for support, including employer intimidation, high worker turnover, the involvement of farm labor contractors in hiring, and the fact that half of agricultural laborers are undocumented and don’t want to take risks for fear of deportation or losing work.

“Farmworker unions are inherently weak because the workers who could form the strongest unions get out of ag for better nonfarm jobs,” said Philip Martin, a professor emeritus at the University of California, Davis who specializes in farm labor. “Leadership tends to be top down, for example the UFW has no [locally based group], so there is almost no way to move up the ranks.”

In addition, Martin said, farmworker wages have increased in recent years as the labor supply has tightened, so some of the modest wage increases won by unions now barely cover union dues, which for farmworkers run 2.5 to 3 percent of their wages. There are also more frequent strikes in the fields, often without prior union activity, that compel growers to increase wages. This was the case in January 2019, when 1,800 nonunionized mandarin pickers walked out of the Wonderful Company’s citrus fields outside of Bakersfield, California. Striking workers did call the UFW and the union provided support during the strike—but it’s not clear that many of them were inspired to join.

The UFW has largely shifted its emphasis from organizing to preserving Chavez’ legacy and advocating on behalf of workers on the state and federal level. It negotiated with growers over a federal farmworker legalization and guest-worker bill (which, ultimately, wasn’t passed by Congress). It won improved heat-stress regulations as part of the settlement of two class action lawsuits it helped farmworkers file. And a UFW-sponsored overtime pay law for farmworkers will be phased in starting this year. The union is now sponsoring a similar federal bill to extend overtime pay to farmworkers nationwide.

“Non-union farmworkers are the greatest beneficiaries of recent UFW legislative and regulatory victories,” said Grossman, the group’s spokesman.

Unions Take Up Fight Through Services and Legislation

Another long-time union, Oregon’s Pineros y Campesinos Unidos del Noroeste (PCUN), also does little collective bargaining these days and focuses instead on providing myriad services to farmworkers and their families.

Founded in 1985, the union has more than 6,500 members in the Willamette Valley, Oregon’s agricultural heartland, but only a few dozen of them are covered by union contracts, said PCUN’s president Reyna Lopez. And some are not farmworkers, but the relatives of those who work in the fields.

“PCUN has functioned as a nontraditional union,” Lopez told Civil Eats. “We’ve expanded our vision of what a member can be. We see ourselves as a community union, where we’ve had to do our organizing in creative ways.”

While PCUN has done its share of organizing and striking, currently, it has only four active contracts with growers, Lopez said. They are “forward-looking farms” that already pay good wages and aim to have a better relationship with the community, she added.

Instead of being drawn in by contracts, most of PCUN’s members join the union after visiting its farmworker service center, which offers everything from legal representation for immigration matters to translation services and assistance filling medical, work, or school forms. The center is also where workers report abuses in the fields and seek other assistance, Lopez said.

PCUN has built farmworker housing, monitored the use of toxic pesticides on Oregon’s farms, and advocated for immigration reform and farmworker legalization, among many other things.

The union’s biggest job, Lopez said, is making sure farmworkers are protected under state law. Thanks to years of PCUN’s prodding, Oregon in 2004 granted farmworkers paid breaks and time off for meals while on the job. More recently, the union was also able to ensure that agricultural laborers were included in the minimum wage increases established in 2016, and it’s currently fighting for farmworkers to be eligible for a proposed state-run paid family and medical leave insurance program.

Migrant workers harvest corn on Uesugi Farms in Gilroy, CA. (USDA photo by Bob Nichols)

“We’ve had to be a lot to everybody,” Lopez said.

Fighting on the legislative level is also what the Farm Labor Organizing Committee (FLOC) has been focused on in North Carolina. FLOC is the only farmworker union whose 10,000 members are mostly Mexican guest workers. In 2004, it signed a unique contract with the North Carolina Growers Association, the nation’s largest user of the H-2A program. All of the guest workers who are brought to work by the NCGA on its 700 member farms are covered under the union agreement.

When workers arrive from Mexico, FLOC’s organizers greet them at the labor camps and explain their rights. During harvest, organizers make weekly trips to the camps to check in with workers and train leaders who can help others in case of problems. Over the last two years, FLOC says it recovered about $600,000 in stolen wages and workers’ compensation. “The workers trust us because we know what’s going on,” said Marlena Graves, the union’s spokeswoman.

Despite its success with collective bargaining, FLOC is facing challenges in the legislative arena. “North Carolina is one of the most anti-union states in the country,” said Flores, the union’s vice president. “It’s even illegal for public sector workers to collectively bargain here.”

The state has made it illegal for any entity buying agricultural products to work only with union growers; another recent law forbids agricultural unions from deducting dues from workers’ paychecks. The law also makes it illegal to negotiate settlements involving union contracts. FLOC sued, and last year a judge temporarily blocked the law from taking effect. Farmworkers are also covered by North Carolina’s Right to Work law; a farmworker may decide not to join the union or pay dues, though he still will be covered by the union contract.

“Many of the state representatives are also growers,” Flores said. “They’re making it hard for us to do our work. This legislative stuff is very damaging.”

Will New York’s Locavores Support Farmworkers?

The 80,000 farmworkers  who labor in New York’s fields, greenhouses, and dairies know little about the challenges of forming and running a modern-day union. They have sought labor protections for over two decades. The bill to remedy their exclusion from state law was first introduced in the mid-1990s after a group of farmworkers discovered they had no right to collective bargaining, said Richard Witt, executive director of Rural Migrant Ministry, a worker advocacy group that helped the farmworkers push for the original bill.

Advocates for the bill say farmworker protections are long overdue and their lack is “the legacy of the Jim Crow era,” according to the New York Civil Liberties Union. And, they say, these protections should be especially embraced by New Yorkers, whose city relies on local, fresh produce from upstate in their restaurants and farmers markets. In her book Labor and the Locavore, author and professor Margaret Gray argues that New York locavores romanticize small-scale local food production and ignore the often exploitative labor practices on Hudson Valley farms and dairies. Gray is a big supporter of the bill.

The New York Farm Bureau, on the other hand, opposes the legislation. The group says granting farmworkers organizing rights would cost farms about $300 million in increased labor costs and would obliterate farm income for many of the growers.

But Witt, the director of Rural Migrant Ministry, said fears about the death of New York farms are misplaced. “These workers are not looking to destroy the industry. What they’re looking for is to preserve their own dignity,” he said.

If the bill passes, Witt said, New York farmworkers will have a steep education curb to climb. They’ll need to learn how unions work and how to organize. Instead of working with a large union, they may choose to go the way of farmworkers in Washington state, where the country’s newest farmworker union—Familias Unidas por la Justicia (Families United for Justice)—was born two years ago.

Farmworkers harvesting cranberries in New Jersey. (USDA photo by Keith Weller.)

After four years of strikes and boycotts on a berry farm two hours north of Seattle, Familias Unidas signed its first contract with Sakuma Brother Farms in June 2017. Most of the 500 workers covered by the agreement now earn between $15 and $40 per hour, president Ramon Torres told Civil Eats. “The grower is paying those wages and hasn’t gone bankrupt,” he added. On the contrary, Torres said, the contract has benefited the company, because workers are lining up to work for Sakuma—a boon in a tight labor market. The union is in the midst of negotiating a second contract.

Torres said Familias Unidas wants to avoid a top-down structure and plans to stay small, so that workers can have more say. “We don’t want to have too many members and not be able to respond to their needs,” he said. Most of the union’s workers hail from the Mexican state of Oaxaca and speak Mixteco and Triqui, indigenous languages. Rather than grow to encompass other workers on other farms, they plan to share what they have learned. “If other workers on nearby farms want to form a union, we can support them and help them form their own,” says Torres.

New York’s farmworkers might soon be able to seek out Familias Unidas’ advice. Though the Farmworker Fair Labor Practices Act has passed in the Assembly several times in the past, it has never made it through the State Senate due to opposition from Republicans. This year might be different. Now that both the Senate and Assembly are under Democratic control—and Governor Andrew Cuomo has called the law keeping workers from organizing “unacceptable” and possibly unconstitutional—advocates hope the bill will finally go through.