Law Giving Unions Access to Private Property Ruled Unconstitutional

A Supreme Court victory was handed down to employers yesterday in a case filed by two California agriculture businesses who challenged a state law that allowed unions to access private property three hours per day, 120 days per year to recruit new members. Pacific Legal Foundation (PLF) represented the businesses at the Supreme Court in the case. PLF argued that the state law amounted to a violation of property rights and constituted a taking without compensation.

The case is Cedar Point Nursery v. Hassid, and the United States Supreme Court held that the California regulation being challenged was an unconstitutional per se taking under the Fifth and Fourteenth Amendments. It was a 6-3 decision authored by Chief Justice Roberts with a concurring opinion by Justice Kavanaugh. Justice Breyer filed a dissenting opinion joined by Justices Sotomayor and Kagan.

The law at issue in this case is the Agricultural Labor Relations Act (ALRA) and its accompanying regulations. The California ALRA governs agricultural employees’ rights to organize given that they are exempted from the National Labor Relations Act. Under those regulations, employers must allow labor organization representatives to access the their property for purposes of meeting and talking with employees and soliciting support. The labor organizations may “take access” to the employers’ property for up to three hours per day, 120 days per year.

The two employers sued, arguing that the access requirement was an unconstitutional per se taking. Under the Fifth and Fourteenth Amendments, the government cannot take private property for public use without compensation. A taking may include regulations or laws that amount to a restriction on a property owner’s ability to use their own property.

The Court agreed with the employers, reversing a divided panel in the Ninth Circuit. It reasoned that the regulation amounted to a per se taking because it eliminated the employers’ right to exclude people from their private property by mandating that they give access to the labor organizers. Contrary to the position of the Ninth Circuit and the dissent, the Court held that the fact that the right to access the employers’ property was not for continuous access “24 hours a day, 365 days a year” did not end the inquiry. An abrogation of the right to exclude for 364 days can be a taking just as one that extends to 365 days, the Court explained. To support its position, it cited other cases in which the Court had found that a taking existed where the physical invasion of the property was intermittent as opposed to continuous. The Court also dismissed concerns that this holding would invalidate the right of the government to engage in health and safety inspections or law enforcement searches. The scope of the Cedar Point decision is likely to be tested in future litigation.

Staff Contact: Ashley Hoffman

Ashley Hoffman joined the California Chamber of Commerce in August 2020 as a policy advocate specializing in labor and employment and workers’ compensation issues. She was named a senior policy advocate starting January 1, 2024 in recognition of her efforts on behalf of members. Hoffman holds a B.A. with high honors in political science from the University of California, Santa Barbara, and earned her J.D. from the UCLA School of Law where she was a Michael T. Masin scholar, an editor at the UCLA Law Review, and staff member for the Women’s Law Journal. See full bio.