Agricultural employers are asking the Supreme Court to make it harder for farmworkers suffering from poor pay and working conditions to unionize
In California, union organizers can temporarily access an agricultural employer’s property outside of work hours in order to talk to farmworkers about their legally protected right to join a union. Two agricultural employers, however, contend that the regulation allowing that access is equivalent to an uncompensated and unconstitutional “taking” of their property and should therefore be struck down.
On Monday, the Supreme Court heard oral arguments in this dispute: In Cedar Point Nursery v. Hassid, two agricultural employers are challenging the 1975 California regulation that allows union representatives to visit private farms. The case could have implications for union organizing across the country.
If the challenge by the employers is successful, it will keep the United Farm Workers (UFW) away from their employees, so they won’t be able to organize them. Such a restriction would be particularly egregious given the harsh working conditions farmworkers face and given that a growing share are temporary migrant workers with H-2A visas who live in housing that is either owned or controlled by their employers.
Farmworkers are employed in one of the most hazardous and lowest paying jobs in the entire U.S. labor market, a fact that isn’t often mentioned in the mainstream coverage. As research I coauthored has shown, farmworkers suffer very high rates of wage and hour violations, yet the number of inspections of agricultural employers has been cut in half in recent years, likely due to the U.S. Department of Labor being perennially underfunded by Congress. Since farmworkers are one of the most vulnerable groups in the U.S. workforce, they would benefit enormously from joining a union.
In addition, a majority of farmworkers either lack an immigration status and fear retaliation and deportation, or they are migrant workers who have a precarious and employer-contingent immigration status such as an H-2A visa, a temporary visa that ties them and indentures them to one employer—meaning that if they lose their job or their status, they become deportable. As a result, farmworkers are much less likely to complain about wage and hour or health and safety violations. Being part of a union, however, would help ensure that their rights are protected and give them the freedom to speak up about employer lawbreaking.
Our report revealed that between 2000 and 2019, 11% of all federal wage and hour investigations on farms found H-2A violations and agricultural employers were required to pay out $55 million in stolen wages and civil money penalties as a result of those violations. A report published last year by Centro de los Derechos del Migrante, a migrant worker advocate group, detailed the findings of in-depth interviews with 100 H-2A workers, who “reported discrimination, sexual harassment, wage theft, and health and safety violations by their employers—and a chilling lack of recourse.” Every single H-2A worker interviewed “experienced at least one serious legal violation of their rights, and 94% experienced three or more.” Considering the challenges and abuses that H-2A workers face while employed on U.S. farms, being able to communicate with them is critical to their protection.
It should also be noted again that H-2A workers, which make up a large and growing share of the farm workforce and now account for 10% of the average employment in U.S. crop agriculture, all reside in housing that is either owned or controlled by their employers. In many cases, being able to talk to H-2A workers about their labor rights without physically visiting the farm where they’re employed will be impossible in practice.
As others have pointed out, if the court strikes down the Agricultural Labor Relations Board’s access regulation, there could be impacts beyond labor organizing. Employers might then challenge government agencies’ right to access private property for inspections related to just about any law or regulation, including ones that pertain to health and safety or wage and hour standards, or anti-discrimination laws, etc.
And while the agricultural employers in question—along with their supporters like the U.S. Chamber of Commerce and right-wing and libertarian groups—are arguing that the California regulation is an unlawful violation of their private property rights (in legal jargon, a “taking”), the regulation already greatly restricts the time, duration, and purpose of the access to the employer’s property. Union organizers must give advance notice to the employers, there are limits on how many organizers can be present on the property, and organizers may not disrupt the business operations of the employer.
It’s never been clearer that farmworkers need easier and increased access to organizers from unions like the UFW and the Farm Labor Organizing Committee (FLOC). The UFW and FLOC are engaging in the herculean task of organizing a workforce that is scattered in rural areas, lacks access to technology, speaks multiple languages, and is fearful of being deported if their employer decides to retaliate against them for speaking out about labor violations or workplace safety.
Hopefully the Supreme Court takes these factors into consideration when deciding whether allowing organizers to have limited access to California farms constitutes a “taking” under the Fifth Amendment.