“The migrant farmworkers are a community within but apart from the local scene. They are rootless and isolated. Although the need for their labor is evident, they are unorganized and without economic or political power.” — Chief Justice Joseph Weintraub, NJ Supreme Court, 1971

Two years after former Gov. Chris Christie vetoed legislation that would have increased the minimum wage in New Jersey to $15 for all workers by 2021, the state Legislature has now taken up a bill that would increase the minimum wage to $15 by 2024 — but not for all workers.

Legislative leaders introduced a bill that would exclude farmworkers among several other classifications of workers. The exclusion of farmworkers from basic labor standards is, unfortunately, nothing new in the United States. When the right to unionize was codified under the Federal National Labor Relations Act (NLRA), farmworkers were excluded to win over the votes of Southern Democrats — who did not believe that the right to organize should be extended to migrant farmworkers and black sharecroppers.

New Jersey now has an opportunity to correct errors of the past or continue to perpetuate them. Although the NLRA excludes farm laborers from those laborers covered under the act, it does not explicitly exclude or pre-empt the right of farmworkers to organize unions. The lack of a federal defined process for organizing farmworkers has allowed states to determine both the right and process of farmworkers to organize.

Disincentive to organizing farmworkers in NJ

In 1989, the New Jersey Supreme Court in the case of Comite Organizador v. Molinelli[1]upheld the constitutional right of farmworkers to organize and engage in collective bargaining. The decision upheld the rights of farmworkers based on Article 1 Section 19 of the state constitution, which states “Persons in private employment shall have the right to organize and bargain collectively.” However, lacking legislation defining the process for unionization, farmworkers seeking to form a union have been forced to rely on the state judiciary to certify their desire to engage in collective bargaining.

The cumbersome and prolonged process of unionization through the courts has proven to be a sufficient disincentive for organizing farmworkers in New Jersey. Without union representation, farmworkers have been effectively excluded from any meaningful economic or political power in the state.

The lack of a seat at the table has become all too apparent in recent discussions on raising the minimum wage in New Jersey to $15 per hour. Behind the “Fight for $15” is the notion that anyone who works a full-time job should be entitled to earn an income that meets the basic cost of living. Excluding farmworkers, or any workers, from a “living wage” would appear to suggest that those workers are not entitled to meet their basic cost of living and is, at the very least, reflective of their lack of political and economic representation in the state. Excluding farmworkers from a living wage is additionally problematic when one considers that farmworkers are far more likely to come from traditionally marginalized communities.

The governor of New Jersey and the Legislature have the power to enact a 21st century fix to the injustice suffered by farmworkers due, in part, to their lack of representation. While federal impasses have prevented legislative solutions to the steady decline of the unionization, and the growing inequality that has accompanied it, New Jersey could lead the way for the rest of the country by providing innovative solutions advancing workers’ rights and promoting the already established constitutional right of workers to freely assembly into unions and engage in collective bargaining.

Perpetuating a lack of political, economic representation

The exclusion of farmworkers under the NLRA has long perpetuated their lack of political and economic representation, but this exclusion could actually be turned into an asset.

New Jersey could enact legislation establishing the institutional mechanisms to facilitate farmworker organizing. Particularly, the Legislature could pass legislation establishing majority sign-up or “card check unionization” for farmworkers, as is already the case for public sector workers in the state (who are likewise excluded from the NLRA).

Card check would allow farmworkers a formal mechanism to choose a labor organization for the purpose of engaging in collective bargaining. Card check has numerous advantages over NLRA-style elections, where management can use the intervening time between petitioning and the representation election to pressure workers into voting against unionization. Furthermore, card check unionization would be significantly less expensive than establishing state institutions to oversee union elections.

Nothing is won in collective bargaining that is not agreed to by both labor and management. Creating a mechanism for majority sign-up union authorization would facilitate what has already been determined to be the constitutional right of New Jersey’s farmworkers.

New Jersey has the choice to be on the forefront of the fight against inequality and for workers’ rights or it could choose to perpetuate the racially-tinged economic injustices faced by farmworkers.