By: Dan W. Sweeney
On June 23rd, 2021, in Cedar Point Nursery v. Hassid, the Supreme Court invalidated a California statue, which allowed union organizers access to a farm owner’s property to discuss the benefits of unionization with the agricultural workers.[1] The regulation allowed two organizers to enter a grower’s property one hour before work, one hour during the lunch break, and one hour after work—totaling three hours of union-advocacy per day, for a maximum of 120 days per year. However, the statute limited union organizer access, requiring labor organizations to file a written notice with the state Agricultural Labor Relations Board and provide a copy of that notice to the employer.[2]
The Supreme Court’s reasoning was grounded in the property rights of the employer/owner of the land. Lower courts have generally chosen, as both the district court and Ninth Circuit court did in this case, to apply the Penn Central balancing test when assessing such regulatory use restrictions in the past. The Penn Central balancing test focuses on (1) the regulation’s economic effect on the landowner, (2) the extent to which the regulation interferes with the owner’s investment backed expectations, and (3) the character of the government action at issue. But Chief Justice Roberts rejected the Ninth Circuit’s reasoning, writing that “[t]he access regulation appropriates a right to invade the growers’ property . . . [and] [r]ather than restraining the growers’ use of their own property, the regulation appropriates for the enjoyment of third parties the owners’ right to exclude.”[3] The Court’s reasoning supports the interpretation that any state statute permitting union organizers on an agricultural employer’s farm, regardless of the amount of time, restricts the property owner’s right to exclude and is tantamount to a per se taking by the government.
Despite unionization efforts in the agricultural industry, farm employees have often been excluded from the pro-union legislation enjoyed by employees in other industries. For example, the National Labor Relations Act[4] and the original version of the Fair Labor Standards Act (later amended in 1966 to include minimum wage protection agricultural workers, but not overtime pay),[5] which sought to protect the rights of workers to organize, have both excluded farm employees from their provisions.
The United Farm Workers (UFW)—the union whose organizers were involved in the events that gave rise to the Cedar Point case—has seen a sharp decline in membership since 1971, when it reached a membership of 70,000.[6] According to the Department of Labor, UFW reported a total membership of only 10,278 in 2013.[7] In 2020, direct on-farm employment accounted for 1.3% of U.S. employment, or roughly 2.6 million jobs.[8] Between the long hours, extreme weather, use of heavy tools and machinery, and traveling to multiple farms, agricultural workers have one of the most dangerous jobs in the United States. Furthermore, an estimated 73% of agricultural workers are immigrant farmworkers, and as of 2016, 47.9% of farmworkers were undocumented. Non-citizen and undocumented workers are even more vulnerable to being subjected to abuses such as persistently low wages, overcrowded or unsafe housing conditions, and lack of access to health insurance.[9]
Without access to the workplace of agricultural employees, the UFW organizers will likely see an even steeper decline in membership. The Cedar Point decision represents another set-back in the enduring struggle for farm workers fighting for the benefits of unionizing and collective bargaining agreements.
[1] See Cedar Point Nursery v. Hassid, 594 U.S. (2021).
[2] See id.
[3] Id.
[4] See Luke Perez, Essential and expendable: The rise of agricultural labor and the United Farm Workers, Nat’l Museum of Am. History (October 15th, 2020), https://americanhistory.si.edu/blog/essential-and-expendable.
[5] See US Labor Law for Farm Workers, Farmworker Justice, https://www.farmworkerjustice.org/advocacy_program/us-labor-law-for-farmworkers/.
[6] See UFW Chronology, United Farm Workers,https://ufw.org/research/history/ufw-chronology/.
[7] Form LM-2 Labor Organization Annual Report,Office of Labor-Management Standards, https://olmsapps.dol.gov/query/orgReport.do?rptId=554744&rptForm=LM2Form.
[8] Ag and Food Sectors and the Economy, Economic Research Service – U.S. DEPARTMENT OF AGRICULTURE,
https://www.ers.usda.gov/data-products/ag-and-food-statistics-charting-the-essentials/ag-and-food-sectors-and-the-economy/.
[9] See Immigrant Farmworkers and America’s Food Production: 5 Things to Know, Fwd.us (March 18th, 2021), https://www.fwd.us/news/immigrant-farmworkers-and-americas-food-production-5-things-to-know/.
