The United States Supreme Court recently issued two decisions related to California labor and employment law.  In one decision, the Court held that a California regulation allowing labor organizers a right to access workplaces was a per se physical taking and was not enforceable without just compensation to the employer.  In the other decision, the Court held that a public school violated a student’s First Amendment rights by disciplining her for online speech that she posted while off-campus.

Cedar Point Nursery v. Hassid – Labor Organizations

In Cedar Point Nursery v. Hassid, the Supreme Court held, in a 6-3 decision, that a California regulation [CCR 8 § 20900(e)(1)(C)] granting labor organizations the “right to take access” to an agricultural employer’s property constituted a per se physical taking under the Fifth and Fourteenth Amendments and was unenforceable.  The regulation granted union organizers the right to physically enter and occupy the agricultural employer’s property for three hours per day, 120 days per year, for the purpose of organizing workers.

In 2015, the United Farm Workers entered the employer’s nursery, without providing written notice, in order to organize the workers.  The employer, Cedar Point, filed a federal lawsuit alleging that the access regulation amounted to taking and seizure in violation of the Fourth and Fifth Amendments.  The case made it through the federal court system up to the United States Supreme Court.

Despite the temporary nature of this right to access, the Supreme Court reasoned that the regulation improperly limited the employer’s right to exclude and granted labor organizers a right to invade the employer’s property.  The Supreme Court in a 6-3 decision upheld the position of the employer and struck down the regulation.

The Cedar Point Nursery decision significantly restrains labor organizers’ ability to solicit support for unionization in the agricultural workplace.  It will be interesting to see if employers in other industries try to use the language of this decision to restrict union access to workers or strike down other pro-union legislation that provides unions with easier access to employees.

Mahanoy Area School District v. B.L. – Free Speech

Earlier this month, the Supreme Court issued its opinion in Mahanoy Area School District v. B.L, holding that a school violated a student’s First Amendment rights by suspending her from the cheerleading team for posting a photo using vulgar language and gestures on her private Snapchat account.  Although schools may possess a special interest in regulating some off-campus student speech, the Court found that these special interests were not sufficient to overcome the student’s interest in free expression.

Although the opinion was limited to a school’s authority to regulate off-campus speech, it could potentially have broader implications in the future.  If courts were to apply similar reasoning in the employment context, it could limit employers’ ability to make employment decisions or discipline employees based on speech that occurred outside the workplace.

Employers forced to make disciplinary decisions about off-work speech or social media postings should review this opinion to help them understand the thought process of the SCOTUS judges on this issue and help guide such decision-making.