State legislatures across the United States have enacted laws that interfere with workers’ rights. For example, a state law crippled public sector unions in Wisconsin, and the legislatures threatened to do the same in Missouri and Illinois. Such laws typically target only certain unions––leaving other unions, such as law enforcement unions, unaffected. And, in some states, certain workers may have no protections under state labor laws due to harmful exclusions. 

When state laws subject certain workers to injurious treatment, and not others, workers have a way to fight back. The Fourteenth Amendment guarantees equal protection of the law. And equality principles are guaranteed in state constitutions as well. In recent years, wielding equal protection arguments against anti-worker laws has resulted in both encouraging successes and disappointing setbacks. It is worth considering how these arguments can succeed.

Leveraging Fundamental Rights

One recent success occurred in New York. There, the New York State Employment Relations Act (SERA) guarantees collective bargaining rights for certain workers who are not covered by the National Labor Relations Act (NLRA). But until 2019, New York’s agricultural workers––who are not covered by the NLRA––were excluded from protection under SERA as well. There is a long, racist history of legislatures excluding agricultural workers from legal protections in the United States.

In Hernandez v. State, a New York appellate court decision, New York’s agricultural workers brought a state constitutional challenge to their exclusion from SERA. The court in Hernandez agreed with the agricultural workers that SERA implicated the New York equal protection clause because it protected collective bargaining by some workers but not agricultural workers. The court then recognized that the New York constitution guarantees workers “the right to organize and to bargain collectively through representatives of their own choosing.” These rights, the court reasoned, are thus fundamental in New York. Since SERA’s exclusion implicated fundamental rights, the court applied strict scrutiny to the legislature’s decision to burden these rights for only some workers (via the exclusion). The exclusion, the court concluded, could not withstand strict scrutiny. The Hernandez decision brought 80,000 agricultural workers under the protection of labor law for the first time.

Hernandez’s holding rests as much on New York’s fundamental right to collectively bargain as it does on equality principles. In that way, it is reminiscent of the U.S. Supreme Court’s jurisprudence that acknowledges the need for heightened judicial skepticism when a legislature unequally burdens fundamental rights. But even in states that do not recognize collective bargaining as a fundamental right, equality principles may be useful to fight anti-union legislation.

Highlighting Suspect Motivations

Consider a recent case from Washington. There, as in New York, the court eliminated a statutory exclusion of agricultural workers. The case, Martinez-Cuevas v. Deruyter Brothers Dairy, challenged agricultural workers’ exclusion from the overtime provisions of Washington’s Minimum Wage Act. The majority invalidated the exclusion under the privileges and immunities clause of the Washington constitution. The majority found that statutory protection from toiling for long hours at low pay in hazardous conditions is a privilege or immunity of state citizenship in Washington, and the legislature lacked a reasonable basis for failing to extend that protection to agricultural workers. But the concurrence took a different approach.

The concurrence in Martinez-Cuevas would have invoked the Washington equal protection clause. The concurrence reasoned that agricultural workers are a vulnerable group. For evidence, the concurrence considered the history of racism that explains statutory exclusions for agricultural workers throughout the country. After determining that the exclusion discriminated against a vulnerable group, the concurrence applied intermediate scrutiny and concluded that the exclusion discriminated without an important governmental interest. The Martinez-Cuevas concurrence thus provides a blueprint for litigation based in equality principles when fundamental rights are not at issue but animus is in play.

Importantly, animus need not be racially motivated. Rather, when animus of any kind motivates a legislature to enact an anti-union law, workers may be able to win an equal protection challenge even if the court applies rational basis review.  Illustrating this argument, the Ninth Circuit reinstated a Federal Equal Protection Clause challenge to a California law because the court was convinced that the California Assembly’s animus toward the plaintiffs could explain the law.

Interestingly, the plaintiffs in the Ninth Circuit case were not workers––they were companies, Uber and Postmates. The Ninth Circuit suspected that the legislature, when it drafted a law that would regulate how these companies classify their workers, was motivated by animus toward these companies. Yet the Ninth Circuit’s logic could just as effectively be wielded on behalf of workers in a case where a state legislature acts out of animus toward certain workers or unions.

A Cautionary Tale in Florida

Despite the promise of using equality principles to fight anti-worker laws, a recent development in equal protection litigation in another jurisdiction illustrates that these arguments are not infallible.

In Florida, unions are challenging a law that ends automatic payroll deduction and requires the state’s public sector unions to meet exacting standards to remain certified. The main provisions of this anti-union law exempt police officer unions, correctional officer unions, and firefighter unions. Non-excluded public sector unions sued under the Florida constitution’s equal protection guarantee (among other theories). 

Unfortunately, in early October, the trial court dismissed the unions’ equal protection claim with prejudice. The unions had attempted to argue that the exclusion was irrational. It was, the unions argued, ostensibly justified as an exclusion for public safety workers. But many public safety workers (for example, emergency dispatchers) are represented by unions that do not fall within the exception. So, the unions argued, the law treated similarly situated workers differently. The court saw no merit in this argument: even if some workers represented by exempt and non-exempt unions are similar, the court’s reasoning suggested, the exempt and non-exempt unions themselves are sufficiently different as to afford the legislature a rational basis for regulating them differently.

The court’s conclusion is disheartening, but not entirely new. After all, in 2013, the Seventh Circuit declined to invalidate Wisconsin’s infamous anti-union law­­­––Act 10––under the federal Equal Protection Clause, even though Act 10 excluded public safety unions.

But perhaps, leveraging the arguments explored above, the public sector unions in Florida could rehabilitate their argument if they choose to appeal. First, collective bargaining is a fundamental right in Florida, guaranteed by the state constitution. So, as in Hernandez, the appropriate standard for review may be strict scrutiny, not rational basis. And second, as in the Martinez-Cuevas and Uber/Postmates cases, there is some evidence that animus motivated this law, because it suspiciously discriminates against the union that has a contentious relationship with Florida Governor Ron DeSantis. If animus explains the law, then it may lack a rational basis even if strict scrutiny does not apply.

Ultimately, myriad factors influence whether equality-based challenges to anti-worker state laws will succeed: state constitutional protections vary; some state legislatures may express animus more openly than others; and judicial ideology influences outcomes. Nonetheless, powerful principles underpin Hernandez in New York, the Martinez-Cuevas concurrence in Washington, and even the Ninth Circuit’s decision in favor of Uber and Postmates. Workers’ lawyers ought to strive to vindicate them.