ALBANY (CN) – Contesting New York’s nearly century-long failure to protect farmworkers from wage theft and other labor abuses, an attorney urged a New York appeals court Monday to bring state law out of the Jim Crow era.

(Photo via NYCLU)

“The court ruled that farmworkers do not have a constitutional right to organize, despite the very clear language in the New York Constitution giving all employees the right to organize,” said Erin Harrist, senior staff attorney at the New York City Civil Liberties Union. “Allowing this racist exclusion that continues to leave farmworkers unprotected in New York goes against our values and our laws.”

New York’s labor laws are a direct descendant of the 1938 Fair Labor Standards Act, which NYCLU argues was altered at the behest of segregationist lawmakers from the South to deny black farmworkers the right to organize.

Farmworkers today tend to be immigrants, and the NYCLU says the same discriminatory intent keeps them from flexing their labor rights.

When the group filed suit in May 2016, both New York Governor Andrew Cuomo and then state Attorney General Eric Schneiderman publicly agreed that excluding farmworkers from the right to organize conflicts with the state constitution.

Both declined to defend the lawsuit in court, but the Third Judicial Department heard arguments against the NYCLU today from the New York Farm Bureau, an intervening party.

“Ultimately this is a political determination,” said Brian Butler, an attorney with the Syracuse firm Bond Schoeneck & King.

Leaning heavily on the ruling against the NYCLU by Justice Richard McNally, Butler said the case “was absolutely tailor made for a motion to dismiss.”

Justice McNally had emphasized last year that farmworkers must turn to the New York Legislature rather than the courts to seek protection to unionize.

“Any changes to the SERA should emanate with the New York State Legislature as ‘the legislative power of this state shall be vested in the Senate and the Assembly,’” he wrote, abbreviating the State Employment Relations Act. “The separation of powers ‘requires that the Legislature make the critical policy decisions, while the executive branch’s responsibility is to implement those policies.’”

Representing the state at the hearing, attorney Joseph Spadola referenced a quotation by the late Supreme Court Justice Oliver Wendell Holmes Jr. for the Harvard Law Review in 1897.

“It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past,” Holmes wrote in an article quoted a century later when New York’s highest court struck down the state’s marital rape exemption.

Spadola argued that “all wage earners should have” the rights guaranteed by the state Labor Relations Act.

“So for 80 years we’ve gotten it wrong?” Justice Stan Pritzker asked.

The NYCLU took up the cause after Marks Farms LLC in Lowville, one of New York’s largest dairies, fired Mexican immigrant Crispin Hernandez for meeting with fellow employees after hours in another worker’s home to discuss workplace conditions.

New York Farm Bureau President David Fisher said Monday he is hopeful that the appeals court will reject the NYCLU’s appeal.

“New York Farm Bureau has long opposed farmworker collective bargaining for one simple reason,” Fisher said in a a statement. “Much of agriculture is driven by the seasons and the weather in a way that is different from any other occupation.The timely planting and harvesting of crops are solely dictated by mother nature. A work stoppage in the name of a labor strike can seriously put animal health and a season’s worth of work in jeopardy. Farmers greatly value the work of their employees, but as farms continue to struggle in this difficult farm economy, additional labor regulations and higher business costs will only push more farms out of business and reduce the number of jobs, on the farm and off, in our rural communities.”