When the federal National Labor Relations Act was passed, it guaranteed collective bargaining power to all workers in the United States. However, farmworkers were specifically excluded from the federal right to collectively bargain free from retaliation, such as being fired or disciplined. This meant that it was left up to the states to allow farmworkers to form unions to collectively bargain. Most states have followed the National Labor Relations Act when enacting their own employment relations laws and have excluded farmworkers from the right to collective bargaining. However, a few states do recognize a farmworker’s right to collectively bargain.
The right to collectively bargain means that workers are protected from retaliation if they join a union to collectively bargain with their employer on their behalf. To collectively bargain means that a union, or some other representative, bargains on behalf of a group of workers with an employer about the terms of the employment contract. All bargaining must be in good faith. The terms bargained for are usually wages, hours, benefits, and working conditions. Once an employment contract is in place, the parties are bound to its terms and conditions until the contract expires.
States Who Guarantee Collective Bargaining for Farmworkers
Fourteen states currently guarantee collective bargaining rights for farmworkers. Arizona, California, Colorado, Hawaii, Kansas, Kentucky, Louisiana, Massachusetts, Nebraska, New Jersey, New York, Oregon, Washington, and Wisconsin all allow collective bargaining. It is important to note that 27 states have “right to work” laws that allow workers to choose whether to be part of a union and prevent employers from refusing to hire them based on that decision. These “right to work” laws are not the same as collective bargaining rights. The “right to work” does not mean that an employer has to recognize employee unions or bargaining agents, only that they cannot discriminate when hiring. For example, Louisiana, Nebraska, and Wisconsin are some of the “right to work” states, but they separately recognize the right to bargain collectively with employers through their laws.
Every state has approached collective bargaining rights slightly differently. Most states define employer, employee, and labor organization rights and responsibilities, establish election procedures, and create state agencies to administer their laws. For example, when California enacted its Agricultural Labor Relation Act, it created the Agricultural Labor Relations Board and General Counsel to enforce the new laws and decide the rights of parties to labor disputes.
Additionally, most states have modified farmworkers’ rights to strike. Arizona law limits the right to strike because of the “seasonal character and perishable nature” of agricultural products. Oregon bans picketing at places where perishable crops are produced if the crops are currently being harvested. Wisconsin requires that if employees plan to strike and the strike would cause harm to agricultural products, they must give a 10-day notice of their intent to strike to the Wisconsin Employment Relations Commission.
Several other states have proposed legislation to grant collective bargaining rights to farmworkers, but those proposals have yet to become law. For example, in January of 2022, the Governor of Maine vetoed a bill that would have allowed farmworkers to organize for the purpose of collective bargaining.
Challenging the Right to Collective Bargaining
The right to collective bargaining has been challenged in several states. In New York, a state appellate court held that the exclusion of farmworkers from a New York state law giving employees the right to organize and collectively bargain was unconstitutional. The appellate court found that every employee has a right to collectively bargain under the New York Constitution. Just two months later, in July 2019, New York passed a state law granting farmworkers a right to collective bargaining.
The Supreme Court of New Jersey found that the New Jersey Constitution protects a private agriculture worker’s right to collectively bargain. In Comite Organizador de Trabajadores Agricolas v. Molinelli, Molinelli refused to recognize or bargain with the union that its migrant farmworkers were part of. The Supreme Court of New Jersey found that Molinelli was required to bargain with the union. In doing so, the Supreme Court of New Jersey held that the New Jersey Constitution guarantees privately employed agricultural workers the right to collectively bargain.
Colorado passed its “Farmworker Bill of Rights” in June of 2021, giving farmworkers in Colorado the right to collective bargaining and striking. However, a coalition of farm and ranch employers have recently challenged the law in federal court, arguing that specific provisions violate their Fifth Amendment rights by allowing “key service providers” access to their property. “Key service providers” are defined by the law as healthcare providers, healthcare workers, educators, attorneys, legal advocates, government officials, clergy members, and anyone else the worker might need access to. To support their claims, the coalition of farm and ranch employers point to the United States Supreme Court decision Cedar Point Nursery v. Hassid.
In the 2021 United States Supreme Court decision, Cedar Point Nursery v. Hassid, the Supreme Court struck down part of California’s labor law, which granted collective bargaining rights to farmworkers because of violations of the Fifth Amendment. The specific law that was struck down allowed unions access to “an agricultural employer’s property in order to solicit support for unionization.” The Supreme Court found that granting access to unions was a physical taking under the Fifth and Fourteenth Amendments because the law granted a right for someone to physically come onto the grower’s property.
Conclusion
Farmworkers do not have a federal right to collective bargaining. Therefore, it is up to the states to decide whether or not to allow unionization and collective bargaining for farmworkers.
Click one of the links below to view each state’s law on collective bargaining.