OSHA Inspections in Big Trouble
A US Supreme Court case around farmworkers, could stop safety inspections
With a new conservative majority on the Supreme Court, the justices have decided to take up yet another case involving workers. The case, Cedar Point Nursery v. Hassid, concerns a law allowing union organizers to meet with farmworkers in California. While the law is narrow, the decision by the justices could have a wide-ranging effect on whether unions or governmental agencies are allowed onto business properties.
Cedar Point Nursery, a farm in Dorris, California, is challenging a state law that allows union organizers onto the farm to talk to workers. According to the law, they would have to file paperwork letting the employer know they are coming and then would be limited to being on the property for 3 hours a day for up to 30 days. The union could invoke this right 4 times a year for a maximum of 120 days on the property. It also limits the time that organizers can talk to the workers to the hour before work starts, the hour they are on a lunch break, and an hour at the end of their shift so that the union organizers don’t interfere with the work being done at the farm. The law came after a years-long fight by the United Farmworkers (UFW) and their legendary leader César Chavez.
The company is arguing that the 45-year-old law violates the Fifth Amendment of the US Constitution, which says private property shall not “be taken for public use, without just compensation.” They argue that the “taking clause” gives the company a broad right to exclude unwanted people from their property, including union organizers, and that the property owner (Cedar Point) are entitled to compensation if this right is violated by the state regulation. Basically, they are saying that the law creates a permanent easement on the property by allowing organizers onto the farm at anytime and that this easement should be stopped.
If the Supreme Court rules in favor of Cedar Point, the decision could have a large impact beyond preventing the UFW from organizing. A broad decision by the court could allow businesses to refuse to allow OSHA inspectors onto a worksite or forbid health inspectors from doing an inspection at a restaurant since those rules would also create a permanent easement to allow inspectors onto the site. It could also limit or endanger land use and safety regulations since inspectors would be unable to ensure that the regulation was being met, meaning that a company could theoretically do whatever they want behind the scenes.
For example, a city could pass a law that says all buildings under construction must past a safety test and must allow a state safety inspector or OSHA inspector onto the site. This would grant the inspectors permanent power to enter the property. If the judges decide in favor of Cedar Point then these construction sites could claim that the law runs afoul of the Fifth amendment. This would especially be the case if the court expands the definition of per se taking- which are cases involving significant intrusions on a person’s property that are entitled to special constitutional protections- as Cedar Point is asking the court to do.
Even basic laws like those requiring illuminated exit signs in a building or laws requiring the construction of a building using sturdy, architecturally sound materials, could run afoul of the per se takings clause.
Of course, the court could also limit their decision, as they did in the Janus case, to just farmworkers or just laws regarding unions. For example, in the Janus decision, only public sector unions were forbidden from collecting mandatory dues, while other mandatory dues, like private-sector union dues, were allowed.
While this case has been overshadowed by the election and is not receiving the attention a case like Janus did, it could have a much more overarching impact on society. It will also be a test of the new conservative majority on how willing they are to strengthen individual’s and corporation’s rights under the Constitution, even if those rights put the larger community at risk.