Court Upholds NY Day Laborers Decision that Struck Down Ban on Soliciting Work

FOR IMMEDIATE RELEASE: August 22, 2017 Contact: John Garcia, Director of Communications, 212-739-7513, 917-673-9095 or jgarcia@latinojustice.org

A federal appeals court has upheld a September 2015 federal district decision that had struck down and permanently enjoined a Long Island town’s ban on day laborers soliciting work on public roads and sidewalks.

Two Long Island organizations that protect the rights of Latino day laborers, the Workplace Project, and Centro de La Comunidad de Hispana de Locust Valley had filed a lawsuit challenging the 2009 Oyster Bay town’s anti-solicitation ordinance on the grounds that it violated core constitutional rights of free speech and equal protection under the law, and was solely enacted to drive Latino immigrants out from the community.

U.S. Federal District Court Judge Denis Hurley granted plaintiffs’ summary judgment in 2015 permanently enjoining Oyster Bay’s municipal ordinance that sought to ban day laborers from soliciting work on public streets. Judge Hurley’s decision found that the town’s ban was unconstitutional and violated the workers groups’ 1st Amendment rights.

The underlying constitutional challenge brought on behalf of the two Latino day laborer groups was filed by LatinoJustice PRLDEF, the New York Civil Liberties Union, and the American Civil Liberties Union Immigrant Rights Project. The lawsuit against the town of Oyster Bay and former Town Supervisor John Venditto, had maintained that the ordinance violates the First and Fourteenth Amendments of the U.S. Constitution.

The U.S. Second Circuit Court of Appeals on August 22, 2017 voted 2-1 to affirm the District Court’s decision granting plaintiffs’ summary judgment.

“The Town of Oyster Bay has had an ugly history of racial exclusion of which this Ordinance was the latest example,” said Alan Levine, Special Counsel at LatinoJustice PRLDEF. “The Town called it a law to protect health and safety. In fact, it had no purpose but to drive brown-skinned men off the Town’s streets and sidewalks. Today the Court of appeals has recognized the law’s blatant unconstitutionality. Our seven year litigation has resulted in an important victory.”

LatinoJustice PRLDEF President and General Counsel Juan Cartagena said that immigrant day laborers are a particularly vulnerable population.

“We are delighted that the Second Circuit affirmed the lower court’s decision finding the town’s ordinance was unconstitutional in attempting to restrict day laborers’ commercial speech as protected under the First amendment,” he said. “The Court’s analysis found that the principal interest the town aimed to serve was the suppression of particular speech, rather than the interests in traffic and pedestrian safety”

Enacted in September 2009, the Oyster Bay ordinance prohibited standing on the sidewalk to solicit employment and would have barred motorists from stopping to offer employment or hire workers. The ordinance criminalized a wide variety of constitutionally protected speech that presents no threat to traffic safety, including, for example, students soliciting cars for a high school carwash fundraiser.

“The Workplace Project is celebrating a victory today for all the day laborers in Oyster Bay and all of Long Island,” said Lilliam Juarez, Director of the Workplace Project. “The court’s decision sends a clear message that all localities have to respect the constitutional rights of the day laborers in freely finding work.”

“The court did justice for the day laborers in this case,” said Centro de la Comunidad Hispana de Locust Valley chairperson Luz Torres. “Centro looks forward to working with the Town to create a welcoming environment for all members of our diverse community.”

For nearly two decades, day laborers have gathered in Oyster Bay, particularly the Hamlet of Locust Valley and the Village of Farmingdale, to find work. Once it passed the ordinance, the Town stationed village law enforcement officers at a corner at which workers and contractors typically met, keeping contractors away from the site and intimidating workers seeking employment. The ordinance had a devastating effect on the workers, who typically depended on these jobs to feed their families, and frequently lacked transportation to seek work elsewhere.

In recent years, Latino day laborers in Oyster Bay have endured harassment and intimidation from neighbors, government officials and law enforcement when they gather to seek work. In a 2006 survey by Hofstra University’s Center for the Study of Labor and Democracy, more than 43 percent of day laborers on Long Island reported being targeted for slurs based on their nationality while more than a quarter reported having been threatened while seeking work. When residents of Farmingdale attempted to establish a hiring site for day laborers, news reports indicated that someone had left a .50-caliber anti-aircraft shell and carved the depiction of a gun in a picnic table at the proposed location.

At the same time, Latino immigrants across Long Island have increasingly faced discrimination, harassment and violence

Local lawmakers and police officials have never explained why current road safety laws – such as New York State’s vehicle and traffic laws – are inadequate to protect motorists or pedestrians. At the public hearing, no resident or Oyster Bay Town Board member indicated that a single traffic accident had occurred as a result of a day laborer soliciting work. The legislative record on the ordinance contains no evidence that the presence of day laborers causes traffic problems.

Lawyers on the case included Alan Levine and Jackson Chin for LatinoJustice, and Arthur Eisenberg and Jordan Wells for the NYCLU. You can download the decision here.

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