On February 10, 2021, NWLC joined 13 other amici in filing a brief at the Supreme Court in the case, Cedar Point Nursey vs. Hassid. Amici wrote to warn the Court of the harms that would flow to all workers — but disproportionately low-paid workers of color — if the Court finds that a California regulation that allows union organizers to access agricultural worksites is unconstitutional. The case was brought by agricultural employers trying to restrict access of union organizers to their property. The employers argue that the California regulation is an unconstitutional “taking” of private property under the Fifth Amendment. As stated in the amicus brief, if the Court finds for the employer, it could have devastating consequences and could seriously undermine state, local, and the federal government’s ability to make and enforce laws that protect the rights of workers and the public.
Government and third-party access to worksites is critical to ensure investigation and enforcement of some of our nation’s most important laws. For instance, the Occupational Safety and Health Act allows Occupational Safety and Health Administration investigators accompanied by third parties to access worksites to investigate workplace health and safety concerns. Similarly, the U.S. Food and Drug Administration, under the Federal Meat Inspection Act has the authority to access the property of privately-owned food production facilities to investigate food safety.
The results of a bad decision could also have dire ripple effects on civil rights law. As amici state in the brief, “There is a long history of businesses challenging anti-discrimination laws as unconstitutional takings that infringe on their property rights to exclude whomever they wish from their property.” This case could lay the groundwork for businesses to argue that requiring them to make their facilities accessible to people with disabilities was unconstitutional. Or as we state in the brief, “an employer who wishes to exclude a Black employee could be emboldened to argue that Title VII constitutes a taking of its ‘right to exclude’ [Black employees from the premises].”
The Court has, thankfully, up to this point, rejected such arguments. They should do so again in this case. If they do not, those most at risk are Black and brown workers who work in jobs that require them to be present at a worksite; the same group of workers who have been so vulnerable to COVID-19, and so essential to the basic functioning of our economy, like agricultural workers, meatpacking workers, retail workers, hospital, and nursing home workers, and so many others.
The National Employment Law Project led the amicus brief.