September 04, 2015 Practice Points

New York's Oyster Bay "Labor Day" Weekend

By Janice Arellano

On September 3, 2015, U.S. District Court Judge Denis Hurley ruled that a law banning day laborers from soliciting work on public sidewalks and streets is unconstitutional, violating the First Amendment.

The town of Oyster Bay is located in New York's Nassau County with a population of about 293,000, and 85 percent of that population is white. In 2009, the town of Oyster Bay asserted that day laborers posed a safety risk in soliciting drivers and clogged traffic. During a town board meeting, Oyster Bay residents complained about the "invasion of day laborers" calling them "unsafe and unsightly." As a result, Chapter 205.32 of the Code of the Town of Oyster Bay was enacted. The ordinance prohibited any person standing on a public street from stopping or attempting to stop a passing car for employment-related purposes and forbade drivers from stopping their cars for the same purposes. The ordinance defined "soliciting employment" to include a wide variety of speech, including "any request, offer, enticement, or action" that seeks or offers work or "that seeks to…secure employment." The law appeared distinctly discriminatory against Latino workers.

In 2011, a complaint was filed in the Eastern District of New York against the town by plaintiffs Centro De La Comunidad Hispana De Locust Valley, which is a membership organization consisting primarily of day laborers and their families who live and work in the Locust Valley section of Oyster Bay. The complaint alleged that since the passage of the ordinance, the day laborers have lost wages, fear harassment by law enforcement, and have been victims of public assault. The plaintiffs filed their complaint with four causes of action: that the ordinance violated rights under the First Amendment, as incorporated by the Fourteenth Amendment, 42 U.S.C. section 1983; that the ordinance is unconstitutional; that it should be void for vagueness; and finally, that they be given equal protection and due process. In particular, the plaintiffs alleged that the ordinance failed to give law enforcement guidance as to which persons standing on the sidewalk are and are not engaged in prohibited activity, and the ordinance fails to apprise ordinary persons of what activity is and is not prohibited.

The district court granted summary judgment in favor of the plaintiffs. The court found that the town's ordinance gave the town's safety officers unfettered discretion which "may surely invite discriminatory enforcement." The court noted that there are a number of less burdensome alternatives available for street and sidewalk safety. The court "urge[d] the parties to seek a safe, constitutionally valid solution to address these concerns."

Keywords: minority trial lawyer, litigation, Oyster Bay, day laborers, soliciting work

Janice Arellano, Esq., is in Edison, New Jersey.

Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).