Supreme Court reinvigorates employers’ property rights | Nexsen Pruet, SARL
Unionization often comes up against the private property rights of an employer. In a decision released this month, Cedar Point Nursery v. Hassid, the United States Supreme Court ruled in favor of the right to protect private property against intrusion by union organizers. While involving a single California statute, the Supreme Court’s ruling could apply to broader situations and reminds employers of the importance of taking steps to preserve private property rights.
Access to Californian farms
A few years ago in California, an employer’s operations were severely disrupted by trade unionists who entered premises, used loudspeakers to attract the attention of working employees, and prompted some to quit. work and leave the site. This was a major disruption for the employer, a strawberry grower, but a frequent occurrence due to a unique California law allowing farm workers’ union organizers the “right to access” homeownership. ‘an agricultural employer for up to three hours a day, 120 days a year. The strawberry grower has filed a federal lawsuit challenging California law on constitutional grounds.
The farmer’s lawsuit was based on the Fifth Amendment to the United States Constitution, which states in part: “Private property may not be used for public use without fair compensation.” The farmer lost and eventually appealed to the Supreme Court, which ruled for the farmer. In Cedar Point Nursery, the Supreme Court found that California law granting union organizers the right to invade farmer property was itself a physical appropriation of private property and violated the constitutional rights of the farmer.
What does the Cedar Point Nursery decision mean for employers? The answer varies depending on the point of view and the underlying facts. For example:
Farmers: For farmers, especially those in California, their private property rights have been defended against unions seeking access to farm workers. Unionization of agricultural workers is governed by state law, not federal law (i.e., the National Labor Relations Act). Unlike California, most states do not have laws protecting or encouraging unionization of farm workers. Generally speaking, farmers can assert their property rights and ban intruders, including union organizers, depending on the situation. California farmers now share that same right, at least until California law changes as a result of Cedar Point Nursery.
Other employers: Of course, private property rights also extend to non-agricultural employers. Employers have long used private property rights to prevent non-employees, including union organizers, from entering premises. The Cedar Point Nursery decision strengthens an employer’s private property rights, but not without limits. Most employers are subject to the NLRA. The Court has long held that an employer can deny on-site access to non-employees, including union organizers, subject to unusual circumstances such as when employees are “beyond the reach of a union’s reasonable efforts” or some businesses that are open to the public.
Next steps for employers
For employers who wish to protect their private property rights, here are some possible measures to consider:
- Understand the nature and scope of private property rights by examining related documents, such as the deed of ownership. For tenants, carefully consider the terms and rights provided by the lease, which often allow the tenant to assert certain private property rights.
- Confirm the perimeter of the property, using property records and dishes. Identify public rights-of-way, including sidewalks. Keep copies of related documents.
- Post appropriate notices, such as “No Trespassing,” along property lines.
- Consult with legal counsel and security professionals to develop a site security plan.
- Evaluate security measures, such as identification procedures, visitor access, video surveillance or on-site security personnel, appropriate to the site.
- Consider entry and exit issues when employees, visitors, suppliers enter or leave the property. For at least construction sites, designate one or more doors for certain suppliers.
- Establish or update written policies and procedures preserving private property rights, including solicitation and distribution policies.
- Communicate and consistently apply policies preserving property rights.
Given the revitalization of private property rights by the Supreme Court, employers should review and update the way they protect these rights.