SCOTUS: Union access rule is a "taking"

[Watch the 90-second video]

California has a regulation that grants labor organizations a "right to take access" to an agricultural employer’s property in order to solicit support for unionization.

The US Supreme Court holds (6-3) that this appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking. Cedar Point Nursery v. Hassid (US Supreme Ct 06/23/2021). [PDF]

That obligates the government to provide the owners with just compensation.

This is true even though the regulation does not allow for permanent and continuous access 24 hours a day, 365 days a year. A physical appropriation is a taking whether it is permanent or temporary. The duration of the appropriation bears only on the amount of compensation due.

The Court declined to adopt the theory that the access regulation merely regulates, and does not appropriate, the growers’ right to exclude.

Three Justices would hold that this was a "regulation" which requires the use of a complex balancing test to determine whether there has been a compensable taking.

Transgender titles meet the 1st amendment

[Watch the video]

A professor addressed a transgender student as Mr.

The transgender student wants to be addressed as Ms.

University policy says that the professor is required to use the pronoun or the title that the individual student prefers.

The professor on the other hand, has a religious belief. He believes that God created male and female and that those cannot be changed and that he has to follow that when he's teaching in class.

Eventually the University reprimanded him and told him that there would be more discipline coming if he continued to violate University policy. Now, the 6th Circuit came in and said, hey, this prof has a free speech right to do this – which I think is just totally wrong. They also said that the University violated his free exercise of religion, which I think is probably correct. Meriwether v. Hartop (6th Cir 03/26/2021) [PDF]

On the Free Speech part, there's the Garcetti case from the US Supreme Court, which basically says to public employees: If you're speaking out as a citizen you have free speech rights, but if you're speaking pursuant to your official duties as an employee, you do not have speech rights. And the 6th Circuit just basically turned that upside down and said, Oh, well, his speaking in class is the heart of his duties and therefore he has free speech rights. I think that's just totally wrong.

On the other hand, on the free exercise part, the University clearly was hostile to his religion. In fact, there was a Provost at the University who actually laughed during one of the hearings — laughed at his religious belief.

So this case is half right and half wrong. In any event, the 6th Circuit has sent it back for a trial.

Prediction in SCOTUS's "union trespass" case [Video]

Watch the video: https://youtu.be/0RoA__x92s0

I'm predicting that the US Supreme Court is going to overrule the 9th Circuit in a case involving union representatives getting access to private property. The case is Cedar Point Nursery v. Hassid [Briefs].

The California Agricultural Labor Relations Board has a rule that says that agricultural growers in California are required to allow union representatives to come onto their property for as long as three hours a day and as many as 120 days a year. The three hours are an hour before work, an hour after work, and an hour during lunch.

The question in this case is whether this results in a "taking" under the 5th amendment, so that the government is required to compensate the growers for that taking. The cert petition phases the issue this way: "Whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment."

There's no question about whether this rule is valid. There's no question about whether it's a smart rule or an unwise rule. It's a question of whether this is a taking that requires compensation.

Both parties agree that what the government has done is taken easement.

What the Board is saying is Well, it's not all the time. It's not continuous. It's intermittent. It's only 120 days. It's only three hours a day And there are limitations on what these union reps can do while they are on the property.

And the growers are saying Well, yeah, but that doesn't really make any difference. If you take an easement, that is per se a “taking” under the 5th amendment, and the fact that it's intermittent and that there are restrictions on what the union reps can do — that goes to the amount of compensation. It doesn't go to the question of whether it's a taking in the first place.

And I'm predicting that the Supreme Court will come down on the side of the growers and say yes, this is a taking. The distinction between all-the-time and part-time really doesn't make any difference.

I say that not because I think the Supreme Court has some bias in favor of management or some ax to grind against unions. It's that this new Supreme Court has shown that it's willing to put much more vitality into the Bill of Rights. And this is a case where I think that's exactly what they're going to do.

The case will be argued probably later in the spring and we’ll get a decision by Summer.

Cert granted in "union trespass" case

The US Supreme Court granted certiorari in Cedar Point Nursery v. Hassid [Briefs] to review the 9th Circuit's decision. California law allows union organizers to go onto the land of agricultural growers for up to three hours per day and for up to 120 days per year. The activities are limited to meeting and talking with employees and soliciting their support; the number of organizers is limited; and business disruption is prohibited.

The issue in this case is whether California has to compensate the growers for a "taking" under the 5th amendment. This case is not about whether California's rule is lawful, or whether it is appropriate.

From a legal standpoint, this is a 5th amendment "takings" case. From a practical standpoint, this is a battle between agricultural employers and labor unions.

Here's how the cert petition phrased the Question Presented:

"California law forces agricultural businesses to allow labor organizers onto their property three times a day for 120 days each year. The regulation provides no mechanism for compensation. A divided panel below held that, although the regulation takes an uncompensated easement, it does not effect a per se physical taking of private property because it does not allow '24 hours a day, 365 days a year' occupation. As an eight-judge dissent from denial of rehearing en banc noted, the panel 'decision not only contradicts Supreme Court precedent but also causes a circuit split.'

"The question presented is whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment."

Here's how the California Agricultural Labor Board phrased the Question Presented:

"In 1975, the California Agricultural Labor Relations Board promulgated a regulation affording union organizers a limited right to access the property of agricultural employers. Cal. Code Regs., tit. 8, § 20900(e). The Board modeled the regulation on a right of access that this Court has recognized under the National Labor Relations Act. See id. § 20900(b); NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956). The state regulation restricts the right of access in several ways. Among other things, organizers may access only non-work spaces, during non-work periods, for no more than three hours per day, and for no more than four thirty-day periods each year. Cal. Code Regs., tit. 8, § 20900(e)(1)(A), (3). The only permissible purpose of the access is for organizers to meet and talk with employees and solicit their support, id. § 20900(e), and the access right terminates five days after the completion of a ballot count in a union representation election, id. § 20900(e)(1)(C). The organizers must provide advance notice to the employer, id. § 20900(e)(1)(B), and only two organizers, plus one additional organizer for every 15 employees beyond 30, may access the property, id. § 20900(e)(4)(A). Disruption of the employer’s business operations is prohibited. Id. § 20900(e)(4)(C).

"The question presented is: Whether the access regulation effects a per se physical taking of petitioners’ property under the Fifth Amendment."

Refund of fair share dues paid pre-Janus is denied. Next stop: Supreme Court.

It's quite rare for an appellant to ask a court to affirm the decision below. Yet that is what happened in Ocol v. Chicago Teachers Union (7th Cir 12/09/2020).

Joseph Ocol is a math teacher in the Chicago public school system. After he was booted out of his union for failure to support a strike in 2016, he kept paying fair-share fees to the union. Those payments were required by the collective bargaining agreement, as authorized by a state statute.

Then the US Supreme Court decided Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018), which held that forcing payment of fair share dues violates the constitution.

Ocol sued to get a refund of the dues he had paid prior to Janus, and mounted a First Amendment challenge to exclusive representation. The trial court held against him.

On appeal to the 7th Circuit, Ocol admitted that both claims are squarely foreclosed by precedent and requested that the 7th Circuit summarily affirm judgment in the defendants’ favor so that he may appeal to the Supreme Court.

The 7th Circuit was only too happy to comply. After all, every appellate court that has taken up the question has reached the same answer: A private party acting under color of state law for § 1983 purposes is entitled to a good-faith defense. And, in Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984), the Supreme Court rejected a First Amendment challenge to a similar exclusive representation provision applicable to state colleges in Minnesota.

Looks like Ocol will petition for certiorari. My bet is that cert will be denied, mainly because there is no split of authority among the lower courts.

7 US Supreme Court cases on employment law (2019-2020)

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During its 2019-2020 term, the US Supreme Court decided seven cases on employment law, including the game-changing decision that Title VII prohibits discrimination because an individual is gay or transgender.

Title VII, gay and transgender employees: An employer who fires an individual merely for being gay or transgender violates Title VII. Bostock v. Clayton County  (6-3).

Ministerial exception: The First Amendment’s Religion Clauses foreclose the adjudica­tion of employment-discrimination claims brought by fifth grade teachers at Catholic schools. Our Lady of Guadalupe School v. Morrissey-Berru (7-2).

ACA Contraceptive mandate: Federal agencies had the authority under the ACA to promulgate religious and moral exemptions to the contraceptive mandate. Little Sisters of the Poor v. Pennsylvania (7-2).

Age discrimination: The ADEA demands that federal personnel actions be untainted by any consideration of age. To obtain reinstatement, dam­ages, or other relief related to the end result of an employment deci­sion, a showing that a personnel action would have been different if age had not been taken into account is necessary, but if age discrimi­nation played a lesser part in the decision, other remedies may be ap­propriate. Babb v. Wilkie (8-1).

Causation under 42 USC §1981: A §1981 plaintiff bears the burden of showing that the plaintiff’s race was a but-for cause of its injury, and that burden remains con­stant over the life of the lawsuit. Comcast v. Natl Assoc of African American-Owned Media (9-0).

ERISA statute of limitations: A plaintiff does not necessarily have “actual knowledge” under §1113(2) of the information contained in disclosures that he receives but does not read or cannot recall reading. To meet §1113(2)’s “actual knowledge” requirement, the plaintiff must in fact have become aware of that information. Intel Corp Committee v. Sulyma (9-0)

ERISA standing: Plan beneficiaries whose benefits are defined lack standing to sue the plan for alleged poor investment of assets. Win or lose, they would still receive the exact same monthly benefits they are already entitled to receive. Thole v. U.S. Bank (5-4).

SCOTUS preview: Ministerial exception

[Video] I’m predicting a clear-cut victory for the schools in Our Lady of Guadalupe School v. Morrissey-Berru [Briefs].

Fifth grade teachers were fired, and claim violations of anti-discrimination laws. The schools argue that the 1st amendment “ministerial exception” allows them to decide who to hire and fire without any government interference.

The central issue is whether these teachers qualify as “ministers.”

Here’s hint at why I think the schools will win: I think there's already three Justices that are lined up in favor of the schools. Justice Alito and Kagan have made it very clear that all they care about is what this teacher is actually doing. They don't care about the titles or things like ordination and that sort of formal stuff. And Justice Thomas has said all he cares about is whether the school has a good faith belief that the teacher is helping to propagate the religion.

No refund of pre-Janus fair share payments

The 6th Circuit held today that a union is entitled to rely on its good faith in following existing Ohio and longstanding Supreme Court precedent permitting fair-share fees, so an objecting employee is not entitled to a refund. Lee v. Ohio Education Association (6th Cir 02/24/2020) [PDF].

In Janus v. AFSCME (2018) the US Supreme Court held that it was unconstitutional to compel public sector employees to pay fair share fees to their union. Now the 6th. 7th, and 9th Circuits have held that the employees cannot recover a refund of payments they made prior to the Janus decision. I did a video [here] on the two earlier decisions.

In Lee v. Ohio Education Association, Plaintiff Lee sought a refund of "fair share" fees she was required to pay to her public-sector union. Shortly thereafter, the Supreme Court held such fees violated the First Amendment as a form of compelled speech, Jones v. AFSCME, Council 31. The trial court granted the union's motion to dismiss, ruling that the union, as a private actor sued under 42 USC Section 1983, was entitled to rely on its good faith in following existing Ohio and longstanding Supreme Court precedent, which had expressly permitted fair-share fees.

The 6th Circuit affirmed the dismissal of plaintiff's federal cause of action because the union's good-faith defense barred the claim. The court held that the trial court properly granted the motion to dismiss plaintiff's section 1983 claim because the union's reliance on existing authority satisfied the good-faith defense as a matter of law.

With respect to plaintiff's state-law conversion claim, the court found that plaintiff was contractually obligated to pay fair-share fees pursuant to the collective bargaining agreement – just as the union was obligated to collect them. It was a condition of plaintiff's employment that she pay fair-share fees. The court concluded plaintiff, therefore, had no right to ownership or possession of them at the time they were taken. Accordingly, the court affirmed the trial court's dismissal of plaintiff's state-law conversion claim.

Certiorari granted to review exemptions to Affordable Care Act’s birth control mandate.

The US Supreme Court has granted certiorari to review Little Sisters of the Poor v. Pennsylvania [Briefs] and Trump v. Pennsylvania [Briefs], which deal with the Affordable Care Act’s requirement that employers to provide female employees with health insurance that includes access to certain forms of birth control. In 2013, the government exempted churches and other religious institutions, and provided an “opt-out” process for religious nonprofits. In 2017, the government expanded the exemption to allow private employers with religious or moral objections to opt out.

The rulings now under review (1) affirmed a nationwide injunction of the 2017 rules, (2) held that the government lacked statutory authority under the Patient Protection and Affordable Care Act and the Religious Freedom Restoration Act to expand the exemption, (3) held that adopting the rules violated the Administrative Procedure Act, and (4) held that Little Sisters of the Poor lacked appellate standing.

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No refunds for Janus objectors

[Video]

In Janus v. AFSCME (2018) the US Supreme Court held that it was unconstitutional to compel public sector employees to pay fair share fees to their union. Now the 9th and 7th Circuits have held that the employees cannot recover a refund of payments they made prior to the Janus decision.

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Ban on transgender personnel in the military will receive intermediate scrutiny; injunction against the ban is stayed.

Here’s a complicated case, raising important issues about the rights of transgender individuals, the extent of executive branch privileges, and the amount of deference courts should grant to military decisions.

In 2017 the President issued a Memorandum barring transgender individuals from serving in the military, but a federal district court issued a preliminary injunction against enforcement of the 2017 Memorandum. In 2018 the President revoked his 2017 Memorandum and authorized the Secretary of Defense to implement the policies he proposed based on a 44-page report. Defendants then requested that the district court dissolve its preliminary injunction, but the district court struck that motion. While defendants were appealing that order, the district court denied defendants' motion for a protective order of discovery and granted plaintiffs' motion to compel production of documents that defendants withheld under a claim of two executive branch privileges. Defendants then petitioned the 9th Circuit for a writ of mandamus challenging the discovery order.

In Karnoski v. Trump (9th Cir 06/14/2019) [PDF] the 9th Circuit:

(1) vacated the district court’s order striking the Defendants’ motion to dissolve the preliminary injunction and remanded to the district court to reconsider the motion. This was on the ground that the 2018 Policy was significantly different from the 2017 Memorandum. In evaluating whether the significant change warrants dissolution of the preliminary injunction, the 9th Circuit rejected the district court's strict scrutiny approach. "[T]he district court should apply a standard of review that is more than rational basis but less than strict scrutiny." In addition, the district court "must apply appropriate military deference to its evaluation of the 2018 Policy." "In applying intermediate scrutiny on remand, the district court may not substitute its 'own evaluation of evidence for a reasonable evaluation' by the military."

(2) issued a stay of the preliminary injunction (which had previously been ordered by the US Supreme Court).

(3) vacated the district court’s discovery order and directed the district court to reconsider discovery by giving careful consideration to executive branch privileges. These include the deliberative process privilege and the presidential communications privilege.

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Fired for extra-marital affair

A police officer was fired for having an extra-marital affair.

Does that violate her constitutional right to privacy and intimate relationship?

The 9th Circuit has done a real flip-flop in Perez v. City of Roseville (9th Cir 05/21/2019) [PDF].

Ross Runkel's Employment Law Case of the Week for May 29, 2019 - Part of a series.

Another attack on public sector unions

There's a petition for certiorari pending at the US Supreme Court asking the Court to take up the issue of "Whether it violates the First Amendment to appoint a labor union to represent and speak for public-sector employees who have declined to join the union." Uradnik v. Inter Faculty Organization [Briefs]

Kathleen Uradnik sought a preliminary injunction challenging the constitutionality of an exclusive collective bargaining representative in the public sector, asserting that “the University and State of Minnesota [should] not appoint the Union to speak for her and not force her into an expressive association with it.”

The trial court denied the preliminary injunction, and the 8th Circuit affirmed in December 2018, having decided that Uradnik "cannot show a likelihood of success on the merits of her compelled speech argument."

The Supreme Court may or may not want to hear this case, so we'll just hide and watch.

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No ministerial exception for Catholic grade school teacher

No ministerial exception for Catholic grade school teacher.

Part of a series - Employment Law Case of the Week - by Ross Runkel.

Is a fifth grade teacher at a Catholic school a “minister” for purposes of the ministerial exception? Court says “No” 2-1.

Kristen Biel was fired from her fifth grade teaching position at a Catholic school after she told her employer that she had breast cancer and would need to miss work to undergo chemotherapy. The trial court granted summary judgment to the employer on the ground that the 1st amendment's ministerial exception barred her claim under the Americans with Disabilities Act. The 9th Circuit reversed, 2-1. Biel v. St. James School (9th Cir 12/17/2018) [PDF]

The court applied the analysis in Hosanna-Tabor v. EEOC to conclude that, under the totality of the circumstances, Biel did not qualify as a "minister" for purposes of the ministerial exception.

1. The school did not hold Biel out as a minister by suggesting to its community that she had special expertise in Church doctrine, values, or pedagogy beyond that of any practicing Catholic.

2. Biel's title "Grade 5 Teacher" did not reflect any religious meaning. There was no religious component to her liberal studies degree or teaching credential, and the school had no religious requirements for her position.

3. Nothing in the record indicates that Biel considered herself a minister or presented herself as one to the community. She described herself as a teacher and claimed no benefits available only to ministers.

4. Biel taught lessons on the Catholic faith four days a week. She also incorporated religious themes and symbols into her overall classroom environment and curriculum, as the school required.

The DISSENT argued that Biel was "entrusted with teaching and conveying the tenets of the faith to the next generation." The substance reflected in her title and the important religious functions she performed outweigh her formal title and whether she held herself out as a minister.