New York District Court Enjoins Enforcement Of Law Limiting Employer Speech During Organizing Campaigns

• Published date: 13 March 2024
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations
• Law Firm: Littler Mendelson
• Author: Mr Samuel Wiles and Maura Mastrony

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...