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Farm workers are excluded from many federal and state labor laws. This includes the right to overtime, a day of rest, state disability insurance, and most importantly the right to engage in collective bargaining. At the state level, farm workers and farm worker advocates have worked in coalition to remove these exclusions.   Of the laws that protect farm workers, FLSNY aggressively pursues farm workers' rights.

The following are FLSNY's current litigated cases:

Re: Farmworkers v. Eastern New York Employers (N.D.N.Y. 2003).

Migrant workers have filed this class action claiming that their employers violated the Fair Labor Standards Act ("FLSA"), the Migrant and Seasonal Agricultural Worker Protection Act ("AWPA"), and New York law. Plaintiffs allege that their employers failed to pay Plaintiffs overtime wages as required by law, although Plaintiffs did work which was overtime-eligible and Plaintiffs regularly worked more than forty hours in a work week. Plaintiffs also allege that their employers housed members of the Plaintiff class in dilapidated, unsanitary, and unsafe housing, and otherwise violated the AWPA in their disclosure to Plaintiffs, their failure to comply with the working arrangement, and their improper payment of wages.

This action was filed in the U.S. District Court for the Northern District of New York in September of 2003.

Re: Eastern New York Grower (S.D.N.Y. 2003).

Three farm worker women have filed charges with the EEOC alleging that their employer sexually harassed them and discriminated against them because they are women. Specifically, the women allege that their employer used sexually explicit and unwelcome language toward them, touched them in a sexual and unwelcome manner, and made vulgar and sexually suggestive gestures around them. They also claim that women were paid less then men and had less favorable working conditions than men.

The charges of discrimination were filed with the EEOC in November of 2003. The lawsuit was filed in the U.S. District Court for the Southern District of New York in January 2004.

Re: Poultry Processor (S.D.N.Y. 2003).

This is an action brought by two farmworkers against a poultry processor. The farmworkers allege that they were not paid overtime in violation of federal and state labor laws. The lawsuit was filed in December 2003.

FLSNY is co-counseling this case with WASHINGTON SQUARE LEGAL SERVICES, INC. (a clinic of NYU School of Law).

Re: International Labor Recruiter (N.D.N.Y. 2002) .

The charging party, a 1999 H-2B worker, and many other women guest workers who she represents, were not permitted by the labor recruiter in Mexico to work at H-2A farms, where wages are usually better and the workers have more labor law protections. Until last season, no woman had ever filled an H-2A position in New York, although women have come to New York as H-2B workers.

FLSNY has established, using employment figures provided by the labor recruiter, that women were discriminated against in guest worker placements. There is less than a .0001 probability that the disparate placements were attributable to random factors.

On September 16, 2002, EEOC New York District Director Spencer H. Lewis, Jr. issued a cause determination finding that the Respondents violated Title VII.

Plaintiffs filed a Class Action lawsuit against the recruiters and employers in December 2002.

The National Organization of Women (NOW) Legal Defense and Education Fund, and Professor Martha Davis of Northeastern University Law School, are serving as co-counsel on this case. The case is in discovery. Defendants have filed summary judgment motions, which have now been fully briefed by all parties. A decision from the Court is expected in 2004.

Re: Western New York Growers and Farm Labor Contractors (W.D.N.Y. 2002)

This class action is brought by ten farm workers against five farm labor contractors and ten growers. The farm labor contractors' alleged violations of federal forced labor and immigration laws were the subject of a federal indictment unsealed in June 2002 . The farm workers complain that the farm labor contractors held them in forced labor in violation of federal human rights laws and the Racketeering Influenced and Corrupt Organizations Act ("RICO"). They also charge the contractors with the torts of fraud, false imprisonment, and intentional infliction of emotional distress. Six of the Plaintiffs bring assault claims against the contractors.

The growers and the contractors are charged with routinely failing to pay the Plaintiffs and/or others the federal and state minimum wage and violating nearly every provision of the federal Migrant and Seasonal Agricultural Worker Protection Act ("AWPA"). These AWPA violations include (among others): housing the Plaintiffs and others at dilapidated and overcrowded labor camps; providing false and misleading information to the Plaintiffs and others at the time or recruitment; failing to comply with a working arrangement entered into with the Plaintiffs; failing to provide the Plaintiffs and others with accurate wage statements; failing to pay the Plaintiffs for all of the hours they worked; and transporting the workers in unsafe vehicles without adequate insurance. The growers and contractors also are accused of failing to comply with the terms of an employment contract, and of violating numerous state labor laws.

If the Court certifies the case as a class action, hundreds of workers (possibly over one thousand workers) who were similarly victimized over the past years will be members of the class.

The original Civil Complaint in this case was file on July 22, 2002, and the First Amended Complaint was filed on August 2, 2002. On November 5, 2002, the United States District Judge granted Plaintiffs' Motion to Proceed Anonymously. The decision is published as 211 F.R.D. 194 (W.D.N.Y. 2002).

On April 22, 2003, the Court granted Plaintiffs' motion to serve two of the contractor defendants by publication. The opinion is published at 217 F.R.D. 308 (W.D.N.Y. 2003).

The United States has filed a motion to intervene to stay the civil proceeding until the conclusion of the presentation of evidence in the criminal case. On September 12, 2003, the Court denied the government's motion to intervene, but granted a stay of the civil proceedings sua sponte. The Court's opinion is published at 218 F.R.D. 72 (W.D.N.Y. 2003).

Re: Upstate New York Town and Police Department, State Police (W.D.N.Y. 2002)

In this case, a Hispanic resident of New York State seeks to redress the discriminatory treatment he was subjected to by an upstate New York town and police department, and the New York State Police. Defendants detained Plaintiff, a legal permanent resident of the United States, first requiring him to present immigration documents and then failing to accept his proffer of valid documents. Plaintiff was publicly arrested and, while detained, was handcuffed to a chair. Plaintiff alleges that Defendants took these action because of Plaintiff's race, ethnicity, and national origin, and violated Plaintiff's civil rights.

This action was filed in the U.S. District Court for the Western District of New York on May 28, 2002. In March 2002, the Court dismissed the town's Motion to Dismiss. The Court granted the Motion to Dismiss of the State Police, but gave Plaintiffs leave to re-plead.

FLSNY is co-counseling this case with NIXON PEABODY of Rochester, New York.

Re: Western New York Grower, (W.D.N.Y. 2001)

This lawsuit was filed against a western New York grower on behalf of four Peruvian farm workers hired under the H-2A guest worker program.

The Plaintiffs allege that the Defendants engaged in widespread violations of their labor rights. First, during the years they worked for Defendants, the Plaintiffs were regularly paid well below the legal minimum wage; their hourly wage averaged well below $4.00 per hour. Second, the Plaintiffs were not paid for the actual number of hours they worked, but rather were cheated out of as many as 30 or 40 hours of pay each week. Third, the Plaintiffs were paid an hourly rate which was far below the Adverse Effect Wage Rate ("AEWR"), set by the United States Department of Labor, which Defendants were obligated to pay Plaintiffs. Fourth, Defendants failed to pay Plaintiffs overtime wages as required by law. Fifth, the Plaintiffs allege that Defendants housed them in dilapidated, unsanitary, and unsafe housing. Finally, Defendants charged Plaintiffs for their transportation-related expenses for travel to and from the United States, in violation of Plaintiffs' employment contracts and federal law, and Defendants incorrectly required Plaintiffs to pay various unauthorized expenses which Defendants claimed were required as part of the H-2A program.

The Complaint in this lawsuit was filed in the U.S. District Court for the Western District of New York on November 28, 2001. The case is in discovery.

In a related case filed in June 2003, Plaintiffs allege that a family member of the Defendants in the original case retaliated against them in violation of federal and state labor laws. Plaintiffs sought a preliminary injunction and damages. On December 18, 2003, the Court granted Plaintiffs' request for a preliminary injunction against the family member. The Court's opinion may be viewed by clicking HERE. It is a slow download, so please be patient.

On September 30, 2003, the Court granted Plaintiffs' motion for a protective order precluding disclosure of Plaintiffs' current addresses and employers. The opinion is published at 2003 U.S. Dist. LEXIS 18865 (W.D.N.Y. 2003).

FLSNY is co-counseling this case with the Farmworker Law Project of the Legal Aid Society of Mid-New York, Inc.

Re: Western New York Grower-2005

An EEOC charge has been filed on behalf on a worker charging sexual discrimination.  A subsequent lawsuit is pending the EEOC investigation.

Re: Western New York Employer-2006

An EEOC charge has been filed on behalf on a worker charging sexual discrimination.  A subsequent lawsuit is pending the EEOC investigation.

Re: 4 cases pending demand letter response from 4 Upstate Growers-2006

All four cases involve unpaid wages and violations of contractual obligations.

Farm workers are excluded from many federal and state labor laws. This includes the right to overtime, a day of rest, state disability insurance, and most importantly the right to engage in collective bargaining. At the state level, farm workers and farm worker advocates have worked in coalition to remove these exclusions. 

At the federal level, Congress has been debating a compromise bill that would provide farm workers with an opportunity to legalize, but would lift a number of restrictions under the H-2 guest worker program. For more information on this proposed legislation, log on to

http://www.crlaf.org, or

http://www.fwjustice.org

Child Labor Information

To support efforts to stop child labor in agriculture, log on to the Human Rights Watch page related to this subject. It has information and links related to the campaign. The website is:

http://www.hrw.org/campaigns/crp/farmchild

Day of Rest?  Not for farm workers!

Read an article that appeared in the New York Times on April 2, 2001 about the exclusion of farm workers from New York's day of rest requirement:

No Days Off at Foie Gras Farm, Steven Greenhouse, New York Times, April 2, 2001.

email: FLSNY