A federal judge in New York recently cast doubt on the validity of state laws that seek to restrict employer speech in connection with union organizing. In New York State Vegetable Growers Association, Inc. v. Letitia James, a trade group and five New York farms sought to enjoin enforcement of a 2020 amendment to the State Employment Relations Act (SERA), enacted as part of the Farm Laborers Fair Labor Practices Act. The plaintiffs claimed, among other things, that one of the amendments violated the First Amendment of the United States Constitution.

The amendment at issue, SERA §704-b(2)(c) (the “Amendment”), makes it unlawful for agricultural employers to “discourage union organization or to discourage an employee from participating in a union organizing drive, engaging in protected concerted activity, or otherwise exercising the rights guaranteed under this article.”¹ The court enjoined the law, finding that plaintiffs had demonstrated a likelihood of success on the merits of their constitutional challenge and that an injunction would be in the public interest.²

The plaintiffs argued that the Amendment, as written, constituted unlawful viewpoint-based discrimination – meaning the law targeted employers’ ideas or opinions, not their conduct. The attorney general sought to justify the Amendment, arguing that guidance for it promulgated by the Public Employment Relations Board (PERB) provided examples of acts of “discouragement” prohibited by the Amendment and the National Labor Relations Act (NLRA). The plaintiffs pointed out, however, that the same guidance cited by the attorney general highlighted that the NLRA does “not have an equivalent provision.”

Ultimately, the judge granted the temporary restraining order on the grounds that the Amendment as written was facially invalid. He reasoned that the law violated the First Amendment facially – meaning the Amendment’s text alone, not its application, resulted in the violation. He explained that the Amendment “is a viewpoint-based law that discriminates against speech based on the ideas or opinions conveyed.” He elaborated that the Amendment was not susceptible to a more favorable interpretation as provided in the PERB’s guidance because a more favorable “construction is not visible in the statute.”

With respect to the public interest, the judge wrote that the Amendment “as written, constitutes impermissible viewpoint discrimination and chills employers’ speech. A preliminary injunction on this provision does not affect the remainder of the statute and therefore, has a minimal impact on farmworkers’ collective-bargaining rights.”

NLRA Preemption

The decision did not address whether the amendment is preempted by the NLRA. The most comparable section of the NLRA is Section 8(c), the Act’s counterpart to the First Amendment, which provides that “[t]he expressing of any views, argument, or opinion . . . shall not constitute or be evidence of an unfair labor practice . . . if such expression contains no threat of reprisal or force or promise of benefit.” The law is clear that employers have strong First Amendment protection for advancing their views on unionization. The Supreme Court has held, for example, “[An] employers’ attempts to persuade to action with respect to joining or not joining unions are within the First Amendment’s guaranty.” Thomas v. Collins, 323 U.S. 516, 537-538 (1945).

Next Steps

With this ruling, the court has enjoined enforcement of this Amendment pending a hearing on the merits of the plaintiffs’ First Amendment challenge. While the facts and posture of the case are thus limited, the case has implications for other state laws that purport to restrict employer speech.³ Other states have similar laws that limit employer speech during union campaigns or prevent employers from holding mandatory employer-sponsored meetings. We expect that court challenges to such laws will prompt more decisions like this one, as courts find that state law bans on employer speech or captive audience talks: (1) are preempted by the NLRA; and (2) violate the First Amendment.

Footnotes

¹ The Act defines “agricultural employers” as those employers “engaged in cultivating the soil or in raising or harvesting any agricultural or horticultural commodity including custom harvesting operators, and employers engaged in the business of crops, livestock and livestock products as defined in section three hundred one of the agriculture and markets law, or other similar agricultural enterprises.”

² As a general matter, a party seeking a preliminary injunction "must . . . show a likelihood of success on the merits, a likelihood of irreparable harm in the absence of preliminary relief, that the balance of equities tips in the party's favor, and that an injunction is in the public interest." Am. Civil Liberties Union v. Clapper, 804 F.3d 617, 622 (2d Cir. 2015) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).

³ Other states have enacted similar legislation, including New York, Maine, Minnesota, and Connecticut.