Senator Brent Jackson walks back part of controversial Farm Act that would have shielded employers from retaliation claims

Editor’s note: The original headline on this story was misleading. Sen. Jackson did not walk back the amendment, but rather previous language that would have changed the Retaliatory Employment Discrimination Act.

An overlooked section of the 2021 Farm Act, which is currently under consideration at the General Assembly, would have undercut North Carolina workers’ ability to sue their employers for retaliation, a potential benefit for Sen. Brent Jackson, a primary bill sponsor and previous subject of these complaints.

On May 5, the Farm Act — Senate Bill 605 — was changed to include a section that would direct the state Department of Labor to dismiss retaliation complaints without telling employees they still had a right to sue their employers.

The proposed law change was drafted to apply to all employees, not just those who work in agriculture.

It is unclear who requested the change; Jackson did not respond to an email from Policy Watch seeking information.

Jennifer Haigwood, Department of Labor spokeswoman, told Policy Watch the agency did not request the amendment and was not involved in its drafting.

Currently, the N.C. Retaliatory Employment Discrimination Act, known as REDA, allows the Department of Labor to dismiss retaliation complaints if it concludes they are unfounded. However, the agency must still provide employees a “right-to-sue” letter within 90 days so they can pursue independent legal action, if they choose.

Under the May 5 version of the legislation, DOL would send right-to-sue letters only to employees whose cases the agency concludes have merit. Haigwood said that under this version of the bill, “an individual would not be able to pursue legal action in instances where the department dismissed (found no merit) their case.”

Yet in 90% of cases, DOL — which has long been criticized by worker advocates for what they say is a pro-employer bias — finds REDA complaints are without merit. From January 2011 to May 6, 2021, agency data show that it issued 2,154 right-to-sue letters without merit. Over the same time period, DOL issued just 217 with merit.

Farmworker organizations and employee rights’ groups opposed the amendment and on May 11, Jackson amended the bill to soften the language. Under the new version, DOL still must send a right-to-sue letter for cases it believes are unfounded, but must state that the agency concluded there is not “reasonable cause to believe the allegation is true.” 

While this could deter some employees from pursuing legal action, it still provides an avenue for them to sue.

This version of the Farm Act passed the full Senate, 28-21, along party lines. The bill is now wending its way through the House.

MaryBe McMillan, president of the NC State AFL-CIO, criticized Jackson for allowing the original language to be included in the bill.

“Senator Brent Jackson is no stranger to self-dealing,” McMillan said. “For a lawmaker to change the law to shield himself from the consequences of breaking it is about as brazen as it gets.”

Jackson, who co-owns Autryville Farms with his son, has been the target of a REDA complaint. According to court documents, in 2016, seven farmworkers from Mexico, representing a class of plaintiffs, sued Jackson for alleged wage violations. 

They were employed by Jackson under the H2-A visa program, and alleged he failed to pay the minimum rate, as guaranteed by a labor contract. Nor did Jackson reimburse them, according to the complaint, for “pre-employment expenses,” such as travel to the farm, as legally required.

According to the Farm Labor Organizing Committee, a union representing agricultural workers, the seven plaintiffs in the wage lawsuit were “blacklisted” and not rehired. A memo provided to Policy Watch by FLOC alleged that Jackson told workers he did not want union members at his farm. (In 2017, Jackson co-sponsored the Farm Act, which hobbled the ability of workers to join and form unions.) Although Jackson and the plaintiffs settled the wage claims, he did not rehire the workers. They filed a REDA complaint; DOL sent them right-to-sue letters, but did not issue a finding of merit and closed the case.

State lawmakers enacted REDA in 1992, after the 1991 Hamlet chicken plant fire that killed 25 workers and injured 40 others. The employer, Imperial Food Products, had routinely locked the doors from the outside, ostensibly to keep workers from stealing chickens. Nor were there sprinklers or a fire alarm system in the factory. 

Survivors later told researchers and documentarians that they were afraid to complain about working conditions because people who did so were subsequently fired.

The Farm Act still contains controversial language that would relax state environmental permitting for industrialized swine farms that install biogas digesters. These digesters capture methane and send it through pipelines to upgrading facilities, which in turn, inject it into natural gas pipelines for utilities to generate electricity.

[Disclosure: Policy Watch is a project of the N.C. Justice Center, which opposed the REDA changes. However, Policy Watch operates as an independent journalism outlet; the Justice Center did not read or draft any part of this article.]