Written by Mary Klein, L’26
Introduction: Agricultural Workers and the National Labor Relations Act Exemption
The National Labor Relations Act (NLRA) was passed in 1935 as part of President Franklin D. Roosevelt’s New Deal, which was a series of wide-reaching economic, social, and political reforms in response to the Great Depression.[1]The Act guaranteed the right of private employees “to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”[2] Included in “concerted activities” is the right to strike, discuss payments and benefits with coworkers, and certain kinds of picketing.[3] Although the Act was wide reaching and beneficial for many, it left a glaring hole in its coverage; section 152(3) of the Act excludes agricultural and domestic workers from its coverage.[4] Many scholars and historians believe that this exclusion was not an oversight, but rather an intentional race-neutral proxy for excluding blacks from the statutory benefits and protections made available to most whites.[5] This was done in order to appease Southern Democrats in Congress who were invested in the quasi-plantation style of agriculture that still was present throughout the Jim Crow South.[6]
This exemption, regardless of intent, has stood unchanged since it was written into federal labor law. Without the Act’s coverage, agricultural employers are free to interfere with, restrain, or coerce employees who are attempting to organize or form a labor union. Employers are free on a federal level to terminate agricultural workers in response to their efforts to organize unionization efforts or attempts to collectively bargain with the employer.[7]
In 2020, the US Department of Labor estimated that 2.4 million farmworkers labor on US farms, ranches, greenhouses, and nurseries.[8] However, this estimation does not include workers in all types of agricultural production, as it excludes livestock, poultry, and fishery employees. It also does not include foreign workers who are working under a H-2A temporary agricultural guestworker visa, of which there were around 378,034 in 2023.[9]
Agricultural labor is not defined in the NLRA; its definition is based on §3(f) of the Fair Labor Standards Act, which “includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities …performed by a farmer or on a farm as incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.”[10]
These estimated 2.4 million workers directly uphold the US agricultural industry, which produces around $222.3 billion of U.S. GDP.[11] Jobs in the agricultural industry are highly physical and expose workers to a high level of dangerous conditions, including heavy duty machinery, exposure to chemical and biological risks, and heat exhaustion.[12] The physically precarious nature of the industry, compounded with low wages and factors such as varied immigration status, lead to situations where agricultural workers are exploited by their employers without much legal recourse.[13] In an industry that is both essential to the country’s function and inherently dangerous to its workers, one would think that labor protections would be a given. However, under federal law, agricultural workers are specifically excluded from the Fair Labor Standards Act’s (FLSA) overtime provisions and any right to collective bargaining under the National Labor Relations Act.[14]
State-Based Approaches
Against the backdrop of federal exemption, state-based labor law is the main avenue for agricultural workers hoping to unionize and collectively bargain with their employer free from retaliation. There are four main approaches to the treatment of agricultural workers within state law with regard to their ability to bargain collectively and to unionize.[15] Within these categories, there is a wide spectrum of the efficacy of these laws.
The first category of states are those that have statutes explicitly granting collective bargaining and organizing rights to agricultural workers; states such as California, New York, Massachusetts, and Washington fall into this category.[16]. California has its own Agricultural Labor Relations Act, which is explicitly designed to give agricultural workers the same right to organize that they would have if they were not excluded from the NLRA.[17] In contrast, Washington’s statute creates a right to engage in concerted activity and organize labor unions free from retaliation.[18] Benefits of this approach include the ability to tailor terms, such as union election timelines and strike policies, to be more applicable to agricultural worker’s conditions as opposed to the standard terms under the NLRA. A disadvantage is that this legislation can be difficult to pass through state legislatures and there can still be major restrictions for agricultural workers written into the law. For example, in Oregon, there is a statute granting agricultural workers the right to join and organize labor unions free from retaliation, as well as engage in collective bargaining.[19] However, this statute does not give workers or the union the right to file a lawsuit or administrative complaint against an employer. This effectively curtails any enforcement of the right to collectively bargain. There are currently eight states that have these explicit statutory grants to agricultural workers.[20]
The second category of states grant collective bargaining rights to agricultural workers through a general labor relations act that exists either through statute or through the state’s constitution.[21] In contrast to the first bucket, these states do not explicitly mention agricultural workers in the code or state constitution, but judicial interpretation has found the general coverage of employees or workers to cover agricultural workers. For example, the state constitution of New Jersey states that “persons in private employment shall have the right to organize and bargain collectively.”[22] The New Jersey Supreme Court has held that this constitutional provision applies to agricultural workers.[23] The Court noted that migrant farm workers are particularly vulnerable to an employer’s pressures and that combined with the seasonal nature of employment, language barriers, lack of legal advocacy, and isolated living and working conditions all combine to make it especially difficult for farm workers to recognize their constitutional rights.[24] Recognizing these factors, “[t]he courts and Legislature of New Jersey have demonstrated a progressive attitude in providing legal protection for migrant farm workers.”[25] There are currently five states that have granted collective bargaining rights to agricultural workers through a general labor relations act or state constitution.[26]
The third category of treatment of agricultural workers under state law is to explicitly exclude them from a state’s labor laws.[27] This effectively mirrors the NLRA’s structure and often excludes agricultural workers by also exempting them from the definition of “employee.”[28] There are currently eleven states that double down on federal exclusion within their state labor codes.[29] For example, in South Dakota’s labor relations act, employees are defined as “any person, other than … farm and ranch labor, working for another for hire in the State of South Dakota…”[30]
The fourth and final category general treatment of agricultural workers’ rights under state law is the most common, and that is to not mention any rights at all.[31] Since there is no affirmative granting of collective bargaining rights to farmworkers through a statute or judicial interpretation, the federal NLRA exemption carries. Many of these states are also “Right to Work” states, meaning union organization is less common in general.[32] There are currently twenty-six states that employ this method, and fifteen of these states are Right to Work states.[33]
Within this final category in particular, there are a lot of blurry lines and gray areas. For example, in Oklahoma, the Right to Work Provision present in the state constitution has been held by the Oklahoma Supreme Court to extend to agricultural workers.[34] Although agricultural workers in Oklahoma do not have an affirmative right to join a labor union, they do have an affirmative right to “[r]esign or refrain from voluntary membership in, voluntary affiliation with, or voluntary financial support of a labor organization.”[35]
The Florida Constitution contains a similar right to work provision to Oklahoma’s, but it also provides that:
The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization. The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the right to strike.[36]
Florida law also provides that employees have the right to join and form labor unions, which agricultural workers are not exempt from.[37] The issue of whether agricultural workers would be provided coverage under the Florida Constitution’s right to work provision was considered by the Florida State Court of Appeals in 1977, which did not fully resolve the issue, but rather held that the decision was for the legislature and not the courts to decide.[38]
Conclusion
Advocates should focus on state law protections for farm workers instead of attempting to delete the federal exemption in the NLRA. Labor protections based on state law as opposed to federal law have the capacity to be better suited to the needs of agricultural workers than what is afforded to workers under the NLRA.[39] Additionally, under existing law and procedures, simply removing the exemption of agricultural laborers from the NLRA would preempt the jurisdiction of state-based agricultural relations statutes.[40] This would undermine the hard-won victory of organizers in states like California, where the farmworkers rights under California Agricultural Labor Relations Act (ALRB) exceed what they would be entitled to under the NLRA.[41] The ALRB is more finely tuned to the specific needs of farmworkers in order to effectively organize.
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Bill Gillette, Weeding Sugar Beets Near Fort Collins (photograph), Wikimedia Commons (June 1972) https://commons.wikimedia.org/wiki/File:WEEDING_SUGAR_BEETS_NEAR_FORT_COLLINS._%28FROM_THE_SITES_EXHIBITION._FOR_OTHER_IMAGES_IN_THIS_ASSIGNMENT,_SEE_FICHE…_-_NARA_-_553879.tif.
[1] National Labor Relations Act (1935), Nat’l Archives, https://www.archives.gov/milestone-documents/national-labor-relations-act (last visited Apr. 8, 2025).
[2] 29 U.S.C. § 157
[3] Interfering with employee rights (Section 7 & 8(a)(1)), NLRB, https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/interfering-with-employee-rights-section-7-8a1 (last visited Apr. 8, 2025).
[4] 29 U.S.C. § 152(3) (“The term “employee” shall include any employee, … but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, …”).
[5] Juan F. Perea, The Echoes of Slavery: Recognizing the Racist Origins of the Agricultural and Domestic Worker Exclusion from the National Labor Relations Act, 72 Ohio St. L. J. 96, 98 (2011); see also Risa L. Goluboff, The Lost Promise of Civil Rights 29 (2007).
[6]Id.
[7] Employer/Union Rights and Obligations, NLRB, https://www.nlrb.gov/about-nlrb/rights-we-protect/your-rights/employer-union-rights-and-obligations (last visited Apr. 3, 2025).
[8] National Agricultural Workers Survey 2019-2020 Selected Statistics, Farmworker Just., https://www.farmworkerjustice.org/wp-content/uploads/2022/06/NAWS-data-fact-sheet-FINAL.docx-3.pdf (June 2022).
[9] Farm Labor, USDA Econ. Rsch. Serv., https://www.ers.usda.gov/topics/farm-economy/farm-labor#h2a (last updated Jan. 8, 2025).
[10] 29 U.S.C. §203(3)(f); see also Bayside Enters. v. NLRB 429 U.S. 298 (1977) (interpreting who counts as an agricultural worker under the NLRA).
[11] Steven Zahniser & Kathleen Kassel, What is Agriculture’s Share of the Overall U.S. Economy?, USDA Econ. Rsch. Serv., https://www.ers.usda.gov/data-products/chart-gallery/chart-detail?chartId=58270#:~:text=According%20to%20data%20from%20the,0.8%20percent%20of%20U.S.%20GDP (Dec. 19, 2024).
[12] According to the CDC, farm workers die from heat-related illness at a rate 20 times greater than the rest of the U.S. civilian workers. From 1992-2017, excessive heat exposure killed 815 U.S. workers and seriously injured over 70,000. However, these numbers have been historically underreported, and governmental institutions no longer record the number of deaths from year to year. But with heat waves increasing in length and intensity, researchers believe heat-related illnesses will also increase if not properly addressed. See Nat’l Farm Worker Ministry, Health and Safety, https://nfwm.org/farm-workers/farm-worker-issues/health-safety/#:~:text=In%20addition%20to%20physically%20demanding,%2C%20dehydration%2C%20and%20even%20death. (last visited Apr. 4, 2025); CDC, Heat-Related Deaths Among Crop Workers-United States, 1992—2006, https://www.cdc.gov/mmwr/preview/mmwrhtml/mm5724a1.htm (last visited Apr. 2, 2025).
[13] See Southern Poverty Law Center, Close to Slavery: Guestworker Programs in the United States (2013) https://www.splcenter.org/wp-content/uploads/files/d6_legacy_files/downloads/publication/SPLC-Close-to-Slavery-2013.pdf (discussing wages, working conditions, and legal barriers for H2A guestworkers).
[14]Supra. note 4.
[15]See Arthur N. Read, Let the Flowers Bloom and Protect the Workers Too- A Strategic Approach Toward Addressing the Marginalization of Agricultural Workers, 6 U. Pa. J. Lab. & Emp. L. 525, 548-554 (2004).
[16] See e.g., Cal. Lab. Code § 1140-1167; Wash. Rev. Code Ann. 49.32.020; see also Bravo v. Dolsen Cos, 888 P.2d 147 (Wash. 1995); Or. Rev. Stat. Ann. § 662.810.
[17] Supra 16
[18]Supra 16
[19]Supra 16
[20] See Ariz. Rev. Stat. § 3-3101-3125 (Arizona); Cal. Lab. Code 1140-1167 (California); Kan. Stat. Ann. §44-818 to 44-830 (Kansas); La. Stat. Ann. 881, 888 (Louisiana); Mass. Gen. Laws Ann. ch. 150A § 5A (Massachusetts); N.Y. Lab. Law § 701-702 (New York); Or. Rev. Stat. Ann. § 662.810 (Oregon); Wash. Rev. Code Ann. 49.32.020 (Washington).
[21]See Arthur N. Read, Let the Flowers Bloom and Protect the Workers Too- A Strategic Approach Toward Addressing the Marginalization of Agricultural Workers, 6 U. Pa. J. Lab. & Emp. L. 525, 550 (2004).
[22] N.J. Const. art. I, para. 19
[23] See Comite Organizador de Trabajadores Agricolas v. Molinelli, 552 A.2d 1003 (N.J. 1989); I.B.T., Local No. 863 v. Seaboard Farms, 519 A.2d 920 (N.J. Super. Ct. App. Div. 1986).
[24] Comite Organizador de Trabajadores Agricolas v. Molinelli, 552 A.2d 1003 (N.J. 1989) (internal quotes omitted).
[25] Id (quoting Vasquez v. Glassboro Service Ass’n, Inc., 415 A.2d 1156 (N.J. 1980)).
[26] Colo. Rev. Stat. § 8-3-101 et seq. (Colorado’s Labor Peace Act); Haw. Rev. Stat. §§ 377-1 et seq. (Hawaii general labor relations statute); Ky. Rev. Stat. Ann. §§ 336.130(1) – (2) (Kentucky); N.J. Const., Art. I, Para. 19 (New Jersey); Wis. Stat. Ann. § 111.04 (Wisconsin).
[27]See Arthur N. Read, Let the Flowers Bloom and Protect the Workers Too- A Strategic Approach Toward Addressing the Marginalization of Agricultural Workers, 6 U. Pa. J. Lab. & Emp. L. 525, 554 (2004).
[28] See e.g., Conn. Gen. Stat. § 31-101; Mich. Comp. Laws §§ 423.16, 423.2); Vt. Stat. Ann. tit. 21, § 1502(6)(A)).
[29] Conn. Gen. Stat. § 31-101 (Connecticut); Mich. Comp. Laws §§ 423.16, 423.2 (Michigan); Minn. Stat. §§ 179.01, 179.10 (Minnesota); Neb. Rev. Stat. Ann. § 48-901(2) (Nebraska); N.D. Cent. Code § 34-12-01 (North Dakota); 43 Pa. Cons. Stat. § 211.3 (Pennsylvania); 28 R.I. Gen. Laws § 7-3 (Rhode Island); S.D. Codified Laws § 60-9A-1(3) (South Dakota); Utah Code Ann. § 34-20-2(4) (Utah); VT. Stat. Ann. tit. 21, § 1502(6)(A) (Vermont); W. Va. Code § 21-1A-3 (West Virginia).
[30] S.D. Codified Laws § 60-9A-1(3).
[31]See Arthur N. Read, Let the Flowers Bloom and Protect the Workers Too- A Strategic Approach Toward Addressing the Marginalization of Agricultural Workers, 6 U. Pa. J. Lab. & Emp. L. 525, 551 (2004).
[32] See Andrew Baker & Travis West, Labor Relations, Professional Perspective – ‘Right to Work’ Laws and Impact on Unionization, Bloomburg Law (Sept. 2020), https://www.bloomberglaw.com/external/document/X8JDHS0O000000/labor-relations-professional-perspective-right-to-work-laws-and-.
[33] The States that are silent on collective bargaining rights for agriculture are Alabama, Alaska, Arkansas, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Maine, Maryland, Mississippi, Missouri, Montana, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Virginia, Wyoming; Right to Work States, Nat’l Rt. to Work Legal Def. Found., https://www.nrtw.org/right-to-work-states/ (last visited Apr. 9, 2025) (list Right to Work states).
[34] Local 514 Transp. Workers Union of Am. v. Keating, 83 P.3d 835 (Okla 2003).
[35] Okla. Const. art. XXXIII.
[36] Fla. Const. art. I, §6.
[37] Fla. Stat. § 447.03.
[38] International Asso. of Machinists & Aerospace Workers v. Talisman Sugar Corp., 352 So. 2d 62 (Fla. Dist. Ct. App. 1977).
[39] The NLRA is slow-moving, whereas state-based Acts, such as the California ALRA has expedited union elections, which is necessary for agricultural workers who are often only present at a work site for the harvest season and then move on to the next. The California ALRA also has more capacious bargaining units that benefit agricultural workers. See Karen S. Koziara, Agricultural Labor Relations Laws in Four States—A Comparison, 100 Monthly Lab. Rev. 14, 14-15 (1977).
[40] Arthur N. Read, Let the Flowers Bloom and Protect the Workers Too- A Strategic Approach Toward Addressing the Marginalization of Agricultural Workers, 6 U. Pa. J. Lab. & Emp. L. 525, 530 (2004); see also Bud Antle, In. v. Barbosa, 45 F.3d 1261, 1268 (9th Cir. 1994). (discussing the extent to which the California ALRB would be preempted by “Garmon preemption”).
[41] See id.; Cal. Lab. Code § 1140-1167.