Amicus Curiae Brief — Cedar Point Nursery, et al., Petitioners v. Victoria Hassid, et al.

Supreme Court briefFeb 10, 2021

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No. 20-107

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------CEDAR POINT NURSERY AND

FOWLER PACKING COMPANY, INC.,

Petitioners,

VICTORIA HASSID, IN HER OFFICIAL

CAPACITY AS CHAIR OF THE AGRICULTURAL

LABOR RELATIONS BOARD; ET AL.,

Respondents.

---------------------------------♦--------------------------------On Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

---------------------------------♦--------------------------------BRIEF OF AMICI CURIAE NATIONAL

EMPLOYMENT LAW PROJECT, NATIONAL

WOMEN’S LAW CENTER, LATINOJUSTICE

PRLDEF, PUBLIC JUSTICE, NATIONAL COUNCIL

FOR OCCUPATIONAL SAFETY AND HEALTH,

WORKSAFE, FOOD CHAIN WORKERS ALLIANCE,

JUSTICE FOR MIGRANT WOMEN,

NATIONAL COUNCIL OF JEWISH WOMEN, INC.,

HEARTLAND CENTER FOR JOBS AND FREEDOM,

ECONOMIC POLICY INSTITUTE, NATIONAL

EMPLOYMENT LAWYERS’ ASSOCIATION,

NATIONAL CENTER FOR LAW AND

ECONOMIC JUSTICE, AND JUSTICE AT WORK

IN SUPPORT OF RESPONDENTS

---------------------------------♦--------------------------------CATHERINE K. RUCKELSHAUS

Counsel of Record

BRIAN CHEN

NAJAH FARLEY

HUGH BARAN

NATIONAL EMPLOYMENT LAW PROJECT, INC.

90 Broad Street, Suite 1101

New York, NY 10004

(646) 693-8221

cruckelshaus@nelp.org

Counsel for Amici

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

iii

IDENTITY AND INTEREST OF AMICI CURIAE .................................................................

SUMMARY OF ARGUMENT ..............................

ARGUMENT ........................................................

II.

Commercial firms cannot assert a Fifth

Amendment right to exclude people—

workers, customers, and, importantly to

this case, non-employee labor representatives—from their commercial operations if

that access is related to commercial regulation of the firm ........................................

If the California rules are unconstitutional, many government-authorized enforcement actions, and the safety, health,

and welfare of workers and communities

could be in jeopardy ...................................

A. Workers, the broader public and employers depend on governmentauthorized individuals’ access onto

private property in order to ensure

compliance with regulations and to

ensure employee safety and health .....

1. Occupational Safety & Health Act ...

2. Mine Safety & Health Act .............. 11

3. U.S. Department of Agriculture’s

Food Safety and Inspection Service

and the U.S. Food and Drug Administration .......................................... 14

TABLE OF CONTENTS—Continued

Page

III.

Anti-Discrimination Rules Limiting Employers’ Right to Exclude Workers and

Individuals are in Jeopardy Under Petitioners’ Argument ...................................... 17

IV.

Many workers who will be impacted by

this ruling are disproportionately people

of color and immigrants, are low-paid and

subject to wage theft and work-related illness and injury, and benefit from jobsite

access by experts and third parties ........... 20

CONCLUSION..................................................... 30

iii

TABLE OF AUTHORITIES

Page

CASES

Commonwealth v. Beasy, 386 S.W.2d 444 (Ky.

1965) .................................................................. 17, 18

Donovan v. Dewey, 452 U.S. 594 (1981) ................ 12, 13

Heart of Atlanta Motel v. United States, 379 U.S.

241 (1964) ...................................................... 5, 17, 18

Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) .............12

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) ............................................... 4, 6

Lucas v. S.C. Coastal Council, 505 U.S. 1003

(1992) .........................................................................5

Matter of Establishment Inspection of Caterpillar Inc., 55 F.3d 334 (7th Cir. 1995) ..........................9

Nebbia v. New York, 291 U.S. 502 (1934)......................7

NLRB v. Babcock & Wilcox Co., 351 U.S. 105

(1956) .......................................................................12

Nollan v. Cal. Coastal Comm’n, 483 U.S. 825

(1987) .........................................................................5

People v. King, 18 N.E. 245 (N.Y. 1888) ......................20

Pinnock v. Int’l House of Pancakes Franchisee,

844 F. Supp. 574 (S.D. Cal. 1993)............................17

PruneYard Shopping Ctr. v. Robins, 447 U.S. 74

(1980) .........................................................................5

Sanguinetti v. United States, 264 U.S. 146 (1924) ........6

Thunder Basin v. Reich, 510 U.S. 200 (1994)..... 11, 12, 13

TABLE OF AUTHORITIES—Continued

Page

Twitty v. Vogue Theatre Corp., 242 F. Supp. 281

(M.D. Fla. 1965) .......................................................18

Yee v. City of Escondido, 503 U.S. 519 (1992) ...............4

STATUTES

7 U.S.C. § 1624(a) ........................................................15

21 U.S.C. § 642 ............................................................14

21 U.S.C. § 2224(c) ......................................................15

29 U.S.C. § 657 ..............................................................9

29 U.S.C. § 657(e) ..........................................................9

30 U.S.C. § 813(a) ........................................................11

30 U.S.C. § 813(f ) .................................................. 11, 13

30 U.S.C. § 813(g)(1) ...................................................13

OTHER AUTHORITIES

American Community Survey microdata, 20152019 ....................................................... 20, 21, 22, 24

Annette Bernhardt et al., Broken Laws, Unprotected Workers: Violations of Employment and

Labor Laws in America’s Cities (2009) ...................... 26

Bureau of Labor Statistics, U.S. Department of

Labor, Survey of Occupational Injuries and

Illnesses (2019) ........................................................27

TABLE OF AUTHORITIES—Continued

Page

Celine McNicholas, Zane Mokhiber, and Adam

Chaikof, Two billion dollars in stolen wages

were recovered for workers in 2015 and 2016—

and that’s just a drop in the bucket, Economic

Policy Institute (Dec. 13, 2017) ...............................26

Charles A. Taylor, Christopher Boulos, and Douglas Almond, Livestock plants and COVID-19

transmission, Proceedings of the National

Academy of Sciences of the Unites States of

America (Dec. 15, 2020) ..........................................28

Christine Owens, Catherine Ruckelshaus, Laura

Padin, Comments on RIN 1235-AA26: Joint

Employer Status Under the Fair Labor Standards Act, National Employment Law Project

(Jun. 25, 2019) .........................................................23

Data show COVID-19 is hitting essential workers and people of color hardest, Data for Justice Project, American Civil Liberties Union

(Apr. 7, 2020) ...........................................................29

David Cooper and Teresa Kroeger, Employers

steal billions from workers’ paychecks each year,

Economic Policy Institute (May 10, 2017) .......... 24, 26

David P. Bui, Keegan McCaffrey, Michael Friedrichs et al., Racial and Ethnic Disparities

Among COVID-19 Cases in Workplace Outbreaks by Industry Sector—Utah, March 6–

June 5, 2020, Morbidity and Mortality Weekly

Report, U.S. Centers for Disease Control and

Prevention (Aug. 21, 2020)......................................28

TABLE OF AUTHORITIES—Continued

Page

David Weil and Amanda Pyles, Why Complain?

Complaints, Compliance and the Problem of

Enforcement in the US Workplace, 27 COMP.

LABOR LAW & POL’Y JOURNAL 59 (2006) ....................8

David Weil, The Fissured Workplace, Why Work

Became So Bad for So Many and What Can Be

Done to Improve It (May 2017) ...............................25

Economic Policy Institute, Why Unions are Good

for Workers—especially in a crisis like Covid19 (Aug. 25, 2020) ......................................................9

Executive Order on Protecting Worker Health

and Safety (Jan. 21, 2021) ......................................29

FSMA Final Rule on Accredited Third-Party

Certiﬁcation, U.S. Food and Drug Admin. (Nov.

2015) ........................................................................15

Howard Berkes, Union: W.VA. Mine Disaster

was Industrial Homicide, NPR (Oct. 25, 2011) .......14

Joel Grover, More Than 800 SoCal Supermarket

Workers Test Positive for COVID-19, NBC4NEWS

(Dec. 30, 2020) .........................................................11

Joseph William Singer, No Right to Exclude:

Public Accommodations and Private Property,

90 NW. U. L. REV. 1283 (1996) ................................17

Ken Jacobs, Tia Koonse, Jennifer Ray, Workers

as Health Monitors: An Assessment of LA

County’s Workplace Public Health Council

Proposal, University of California at Berkeley

(Jul. 21, 2020) ..........................................................29

vii

TABLE OF AUTHORITIES—Continued

Page

LA Cnty. Dep’t of Pub. Health, Workplace Outbreaks Surge as Public Health Ramps Up

COVID-19 Vaccination Capacity 281 New

Deaths and 14,564 New Conﬁrmed Cases of

COVID-19 in Los Angeles County (Jan. 13,

2021) ........................................................................11

Laura Padin and Maya Pinto, Lasting Solutions

for America’s Temporary Workers, National

Employment Law Project (Aug. 26, 2020) ..............23

Libby Sander, Source of Deadly E.coli Is Found,

The New York Times (Oct. 13, 2006) ......................16

Maya Pinto, Rakeen Mabud, Amity Paye, and

Sanjay Pinto, Foundations for a Just and Inclusive Recovery, NELP et al. (Feb. 3, 2021) ..........27

Megan Brenan, At 65%, Approval of Labor Unions in U.S. Remains High, Gallup (Sep. 3,

2020) ........................................................................30

Michael Felsen and M. Patricia Smith, Wage

Theft Is a Real National Emergency, The

American Prospect (Mar. 5, 2019) ..........................25

NAT’L EMPL. L. PROJECT, WORKER SAFETY IN CRISIS: THE COST OF A WEAKENED OSHA (Apr.

2020) ........................................................................10

NAT’L EMPL. L. PROJ., OSHA Must Protect

COVID Whistleblowers Who File Retaliation

Complaints (Oct. 8, 2020) .......................................11

NAT’L EMPL. L. PROJ., Who’s the Boss: Restoring

Accountability for Outsourced Work (2014) ............23

viii

TABLE OF AUTHORITIES—Continued

Page

Rajiv Sethi et al., Who Is Dying, and Why?

COVID-19 Rapid Response Impact Initiative

Working Paper 19, Center for Ethics, Harvard

University (May 20, 2020) ......................................29

Reneé Johnson, The Federal Food Safety System:

A Primer, Congressional Research Service

(Dec. 16, 2016) .........................................................15

S.Rep. No. 95-181 (1977).............................................12

Samuel R. Bagenstos, The Unrelenting Libertarian Challenge to Public Accommodations Law,

66 STAN. L. REV. 1205 (2014) ..................................18

Theresa Andrasfay and Noreen Goldman, Reductions in 2020 US life expectancy due to

COVID-19 and the disproportionate impact on

the Black and Latino populations (Oct. 15,

2020) ........................................................................29

U.S. Bureau of Labor Statistics Employment

Projections, 2019-2029 ............................................21

U.S. Code Cong. & Admin. News 1977, Legislative History of the Federal Mine Safety and

Health Act of 1977 ..................................................12

U.S. Dep’t of Justice, Former Massey Energy

CEO Sentenced to a Year in Federal Prison,

(Apr. 6, 2016) ...........................................................14

U.S. Dep’t of Labor, Occupational Safety and

Health Administration, OSHA’s severe violator enforcement directive effective June 18

(Jun. 18, 2010) .........................................................28

TABLE OF AUTHORITIES—Continued

Page

U.S. Dep’t of Labor, Occupational Safety and

Health Administration, Severe Violators Enforcement Program Case Log (Jan. 1, 2021) ............28

U.S. Dep’t of Labor, Mine Safety and Health Administration, Report of Investigation (May 9,

2007) ........................................................................13

REGULATIONS

7 C.F.R. § 869.108 .......................................................16

9 C.F.R. § 307.1 ...........................................................15

29 C.F.R. § 1903.8 .........................................................9

30 C.F.R. § 40.1 ..................................................... 11, 13

30 C.F.R. § 43.2 ...........................................................13

81 Fed. Reg. 81 at 68799, 68800, 68867 .....................10

Cal. Code Regs., tit. 8, § 20900 .....................................4

Cal. Code Regs., tit. 8, § 20900(d) .................................5

IDENTITY AND INTEREST OF AMICI CURIAE

Amici National Employment Law Project, National Women’s Law Center, LatinoJustice PRLDEF,

Public Justice, National Council for Occupational

Safety and Health, WorkSafe, Food Chain Workers

Alliance, Justice for Migrant Women, National Council

of Jewish Women, Inc., Heartland Center for Jobs and

Freedom, Economic Policy Institute, National Employment Lawyers’ Association, National Center for Law

and Economic Justice, and Justice at Work are nonproﬁt organizations aimed at advancing policies that

reinforce our nation’s stated values of equality, opportunity, and justice. Amici have an interest in the

outcome of this case based on their experiences advocating for workers’ rights, and the need to ensure effective access to worksites in order to uphold labor and

workplace laws.

Amici write not to repeat arguments made by the

parties, or other amici, but to describe the possible dire

impacts of a ruling in this case to a broad set of workers and communities in the many low-wage sectors

that share many of the characteristics as the jobs in

this case.1

---------------------------------♦--------------------------------1

All parties have consented to the ﬁling of this brief. In addition, no counsel for a party authored this brief in whole or in

part, and no party or counsel for a party made a monetary contribution intended to fund its preparation or submission. No person

other than amici or amici’s counsel made a monetary contribution

to the preparation or submission of this brief, as provided in Rule

37.3(a) and 37.6.

SUMMARY OF ARGUMENT

Companies that use their premises for commercial

activities are limited in their right to exclude unwanted individuals. Business owners expect and rely

on long-standing public safeguards that require periodic on-site inspection of themselves, their subcontractors, and competitors in workplaces like agriculture

and food production, warehousing, poultry and meatpacking, hospitals and nursing homes, construction

sites, security and janitorial, landscaping, retail, mining and extraction, restaurants, and hotels. Inspection

and other on-site visits by government and third-party

experts is vital for the health and safety of workers,

consumers, and the broader public, and rules permitting such access also promote enduring public policies

against discriminatory exclusions by businesses.

In this case, Petitioners challenge a long-standing

California Agricultural Labor Relations Board (“ALRB”

or “Board”) rule that permits union organizers to seek

permission to enter onto employer property for limited

periods, during lunchtimes or before or after a shift, to

talk to workers. Petitioners claim that the ALRB regulations violate their Fifth Amendment right to exclude

unwanted visitors from their property as a per se taking.

Workers earning lower wages like the agricultural workers employed by Petitioners face high rates

of wage theft, work in dangerous jobs, and rely on

enforcement of workplace protections that includes

on-site access for audits and inspections to ensure

compliance.2 For these reasons, public policies and

agencies aim strategic enforcement resources at highviolation industries to ensure compliance and deter

unfair competition.

Amici write to highlight these and similarly-situated workers’ interests to this case, providing additional and relevant facts to the Court as it is asked to

radically alter constitutional law in a way that would

cause immeasurable harm to workers and our society.

If Petitioners’ argument succeeds, it could not

only ban union organizers but also open the door to

threaten worksite access by the government and authorized third parties that ensure myriad protections

related to safety and health, civil rights, and the general well-being of the public. Without access to company premises, enforcement of worker and community

protections will be hamstrung and potentially meaningless, undoing landmark policies from the New Deal

and civil rights eras. And, as other amici point out, including the National Association of Counties, the success of this argument could endanger a much broader

swath of regulation for the public safety and welfare.

---------------------------------♦---------------------------------

See, e.g., amicus brief for California Rural Legal Foundation et al. for a description of the job quality and workplace violations endemic in agriculture.

ARGUMENT

Commercial firms cannot assert a Fifth

Amendment right to exclude people—

workers, customers, and, importantly to

this case, non-employee labor representatives—from their commercial operations if

that access is related to commercial regulation of the firm.

The question presented in this case is whether a

Fifth Amendment physical taking has occurred. The

answer is no. Nothing in this Court’s history supports

the notion that a commercial ﬁrm has suffered a per se

physical taking when a state or locality or the federal

government makes and implements rules that regulate commercial activity for the public good. This Court

has never prohibited the kind of circumscribed, timelimited access regulation of commercial activity presented in this case.

Petitioners’ challenge fails to state a per se physical taking under the Fifth Amendment. The California

ALRB’s regulation, Cal. Code Regs., tit. 8, § 20900, is a

45-year-old limited access rule aimed at the activities

of the business, i.e., petitioners’ use of land for commercial enterprise. See Yee v. City of Escondido, 503 U.S.

519, 527 (1992) (ﬁnding no physical, per se taking because the “laws at issue here merely regulate petitioners’ use of their land by regulating the relationship

between landlord and tenant”); Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419, 427 (1982) (distinguishing a permanent, physical occupation from

regulation that merely restricts the use of private

property). The Board’s regulations are not land-use

regulation aimed at private property. They seek to regulate speciﬁc labor relations inherent to agricultural

commerce. See Cal. Code Regs., tit. 8, § 20900(d) (noting the California legislature’s “declared purpose of

bringing certainty and a sense of fair play to a presently unstable and potentially volatile condition in the

agricultural ﬁelds of California”).

Time and again, in such cases as Heart of Atlanta

Motel v. United States, 379 U.S. 241 (1964) and PruneYard Shopping Ctr. v. Robins, 447 U.S. 74 (1980), this

Court has made clear that businesses cannot assert a

Fifth Amendment right to exclude others where access

is related to—in fact, necessitated by—commercial regulation of the ﬁrm. While the Fifth Amendment protects certain property rights, those rights are not

unlimited. Where there is a state interest in regulating

property, a “broad range of governmental purposes and

regulations satisﬁes” the requirements for a valid infringement of property rights. Nollan v. Cal. Coastal

Comm’n, 483 U.S. 825, 834 (1987). Where the state’s

regulations focus on commercial activity, the government’s ability to regulate is even greater given “the

State’s traditionally high degree of control over commercial dealings[.]” Lucas v. S.C. Coastal Council, 505

U.S. 1003, 1026 (1992).

Here, Petitioners and companies like them are

commercial enterprises. Their very reason for being—

the means by which they generate revenue and

proﬁt—requires them to invite people onto their premises. Employees, contractors, and subcontractors are

invited and welcomed onto the property to work the

land. At the same time, commercial ﬁrms’ right to exclude is limited and based on statutory protections in

the public interest. Rules that permit certain governmental and third-party access to commercial property

are vital for the health and safety of workers, of consumers, and of the broader public, and rules that restrict corporations’ right to exclude promote longstanding public policies against discriminatory exclusions. The ALRB’s rule is one of countless regulatory

regimes across the country in which the state has an

interest in regulating commercial activity for the common good.

This Court has repeatedly said that for a physical

taking to occur, there must be “actual, permanent invasion of the land, amounting to an appropriation of,

and not merely an injury to, the property.” Sanguinetti

v. United States, 264 U.S. 146, 149 (1924). This Court

has distinguished between “permanent physical occupation, and a physical invasion short of an occupation,

and a regulation that merely restricts the use of property.” Loretto, 458 U.S. at 430. Further, “[n]ot every

physical invasion is a taking . . . [because] they do not

absolutely dispossess the owner of his rights to use,

and exclude others from, his property.” Id. at 435 n.12.

Government rules in all sorts of public policy arenas,

discussed in greater detail in Section II, grant people

periodic access to private property that does not

amount to a “permanent and physical occupation” of

the property. Id. at 434-35.

Petitioners’ argument has no connection to this

Court’s takings jurisprudence and would wreak untold

havoc on public policies that form the backbone of our

public health and wellbeing. On this point, the Court

is clear: “[N]either property rights nor contract rights

are absolute. . . . Equally fundamental with the private

right is that of the public to regulate it in the common

interest.” Nebbia v. New York, 291 U.S. 502, 523 (1934).

Petitioners seek to extinguish the public’s ability to

regulate ordinary commercial activity in the guise of

an inapplicable takings argument.

II.

If the California rules are unconstitutional, many government-authorized enforcement actions, and the safety, health,

and welfare of workers and communities

could be in jeopardy.

A. Workers, the broader public and employers depend on government-authorized individuals’ access onto private

property in order to ensure compliance

with regulations and to ensure employee safety and health.

Ensuring compliance with workplace and public

protections often requires public ofﬁcials and authorized third parties to temporarily enter onto private

land, and this activity has not given rise to constitutional liability under the Takings Clause. The Solicitor

General agrees: “both this Court and the lower courts

have long recognized that all property is held subject to certain core exercises of the police power, like

law-enforcement searches and health and safety inspections—though other constitutional constraints,

like the Fourth Amendment, may apply.”3 From meat

and poultry plants, to hospitals, mines, and grocery

stores, temporary and physical access by government

and third parties in furtherance of public protections

are an important and common feature of business operations.

Below, amici illustrate a sampling of the many instances where government access to employer property along with third parties (and sometimes solely

by third parties) serves as a critical compliance check

on ﬁrms’ behavior. The alternative is for enforcement

agencies to conduct desk or phone audits or wait for

individual workers’ evidence, but worker fear of retaliation and loss of economic security present severe

barriers to many workers, meaning that individual

complaint-driven and desk-audit enforcement is woefully inadequate.4

1. Occupational Safety & Health Act.

The 1970 Occupational Safety and Health Act

(“OSH Act”) authorizes the health and safety agency to

Brief amicus curiae of the United States, at 29; see also

Brief amici curiae of National Association of Counties et al.

David Weil and Amanda Pyles, Why Complain? Complaints, Compliance and the Problem of Enforcement in the US

Workplace, 27 COMP. LABOR LAW & POL’Y JOURNAL 59 (2006),

available at: https://www.researchgate.net/publication/267260153_

Why_Complain_Complaints_Compliance_and_the_Problem_of_

Enforcement_in_the_US_Workplace.

enter onto premises to inspect workplaces for health

and safety compliance. 29 U.S.C. § 657. Section (e) of

the Act allows for authorized employee representatives

to accompany Compliance Safety and Health ofﬁcers

during any physical inspection of a worksite “for the

purpose of aiding such inspection,” and to “provide an

appropriate degree of involvement of employees.” 29

U.S.C. § 657(e); 29 C.F.R. § 1903.8. Although these representatives are normally employees (and where there

is a union representing the employees, a representative from the union), the law permits third parties,

such as industrial hygienists or others who may aid in

the inspection, to join in the walk-around.5 29 C.F.R.

§ 1903.8; see, e.g., Matter of Establishment Inspection

of Caterpillar Inc., 55 F.3d 334, 336 (7th Cir. 1995).6

As discussed below for meat and food processing

and warehousing, other government agencies inspect

worksites for health and safety compliance, including

Relevant to the union organizers’ access in this case, union

representation is positively correlated with health and safety on

the job. Economic Policy Institute, Why Unions are Good for

Workers—especially in a crisis like Covid-19, Aug. 25, 2020,

https://www.epi.org/publication/why-unions-are-good-for-workersespecially-in-a-crisis-like-covid-19-12-policies-that-would-boostworker-rights-safety-and-wages/.

The Trump Administration withdrew a 2013 Letter of

Interpretation that clarified the right of non-union third parties to accompany OSHA during walk-around inspections.

https://www.osha.gov/laws-regs/standardinterpretations/2013-0221. The underlying regulations are still intact permitting third

parties; however, there is more discretion with the OSHA inspector as to who to permit. https://www.osha.gov/sites/default/ﬁles/

2018-12/fy10_sh-20853-10_osha_inspections.pdf.

in long-term care (nursing homes) and hospitals. For

these worksites with specialized health and safety

compliance requirements, mandatory annual inspections and surveys may be performed by authorized private professional review organizations and designated

ombudspersons.7

Without third party access, employer property,

health and safety inspections would ﬂounder, given a

dire lack of government resources and capacity to inspect alone. As of January 2020, OSHA had a total of

862 inspectors to cover millions of workplaces, the lowest number of on-board inspectors in the previous 45

years. At this stafﬁng level, it would take the agency

165 years to inspect each workplace under its jurisdiction just once.8

The current health and safety emergencies facing workers in warehouses, meat processing, nursing

homes, grocery stores, and other premises-based jobs

See, e.g, listing of inspections of facilities operated under

Medicare and Medicaid by the Centers for Medicaid Services

in the Department of Health & Human Services and other entities, permitting CMS or its designee to inspect records, lists,

etc., at 81 Fed. Reg. 81 at 68799, 68800, 68867, available at:

https://www.federalregister.gov/documents/2016/10/04/2016-23503/

medicare-and-medicaid-programs-reform-of-requirements-for-longterm-care-facilities.

NAT’L EMP. L. PROJECT, WORKER SAFETY IN CRISIS: THE COST

OF A WEAKENED OSHA, at 2–3 (Apr. 2020), https://s27147.pcdn.co/

wp-content/uploads/Worker-Safety-Crisis-Cost-Weakened-OSHA.pdf.

during the COVID-19 pandemic illustrate the need for

robust oversight using all tools and persons at hand.9

2. Mine Safety & Health Act.

The Mine Safety and Health Administration

(“MSHA”) has a long tradition of allowing miners’ representatives to enter mines along with its inspectors

under the Mine Act and accompanying regulations. 30

U.S.C. § 813(f ); 30 C.F.R. § 40.1. Permitted miners’ representatives on inspections can be a member of an organization which represents two or more miners at a

coal or other mine, and include union representatives.

30 U.S.C. § 813(f ); 30 C.F.R. § 40.1. MSHA regulations

provide for a minimum of two annual inspections of

surface mines and four annual inspections of underground mines, and sometimes more if the mine has explosive or toxic gasses. 30 U.S.C. § 813(a). Depending

on the size of the worksite, each inspection can take a

day to a few weeks. These inspections have never been

considered a physical taking, even though the usage

may be continuous. See Thunder Basin v. Reich, 510

U.S. 200 (1994).

See, e.g., Joel Grover, More Than 800 SoCal Supermarket

Workers Test Positive for COVID-19, NBC4NEWS (Dec. 30, 2020),

https://tinyurl.com/yacpcq2d; LA Cnty. Dep’t of Pub. Health,

Workplace Outbreaks Surge as Public Health Ramps Up COVID19 Vaccination Capacity 281 New Deaths and 14,564 New Conﬁrmed Cases of COVID-19 in Los Angeles County (Jan. 13, 2021),

https://tinyurl.com/y6h4so3z; Nat’l Empl. Law Proj., OSHA Must

Protect COVID Whistleblowers Who File Retaliation Complaints

(Oct. 8, 2020), https://www.nelp.org/publication/osha-failed-protectwhistleblowers-filed-covid-retaliation-complaints/.

In Thunder Basin, the Court highlighted the reason for the access enforcement scheme, one that was

put in place to curb “frequent and tragic mining disasters” due to the ineffectiveness of the enforcement

measures existing at the time of the Mine Act. Id. at

209-10 (citing S.Rep. No. 95-181, p. 4 (1977), U.S. Code

Cong. & Admin. News 1977, p. 3401, Legislative History of the Federal Mine Safety and Health Act of

1977). In Thunder Basin, the Court dismissed any

Fifth Amendment challenge to such access, arguing

that such claims “misconstrue Lechmere,” since the

right to exclude union organizers derives from state

property law, which states can redeﬁne:

[w]ithout addressing the merits of petitioner’s

underlying claim, we note that petitioner appears to misconstrue Lechmere, Inc. v. NLRB,

502 U.S. 527, 112 S.Ct. 841, 117 L.Ed.2d 79

(1992). The right of employers to exclude union organizers from their private property emanates from state common law, and while this

right is not superseded by the NLRA, nothing

in the NLRA expressly protects it. To the contrary, this Court consistently has maintained

that the NLRA may entitle union employees

to obtain access to an employer’s property under limited circumstances. See id., at 537, 112

S.Ct., at 848; NLRB v. Babcock & Wilcox Co.,

351 U.S. 105, 112, 76 S.Ct. 679, 684, 100 L.Ed.

975 (1956). Moreover, in a related context, the

Court has held that Congress’ interest in regulating the mining industry may justify limiting the private property interests of mine

operators. See Donovan v. Dewey, 452 U.S. 594,

101 S.Ct. 2534, 69 L.Ed.2d 262 (1981) (unannounced Mine Act inspections do not violate

the Fourth Amendment).

Id. at 217.

MSHA inspectors and third-party miner representatives can also access the property for spot inspections, such as methane checks, and to follow up on

complaints, making their access continuous in nature.

30 U.S.C. § 813(f ). Miners’ representatives are tasked

with assisting mine operators to comply with the

health and safety standards under the Mine Act. 30

U.S.C. § 813(f ). They are allowed to report accidents,

health and safety hazards, and unsafe conditions, and

can even request a special inspection to investigate violations or imminent dangers to the Secretary. 30

U.S.C. § 813(g)(1); 30 C.F.R. § 43.2. MSHA inspectors

are not required to give advance notice of these inspections, and the miners’ representatives can be present

during the inspection, as well as during the pre- and

post-inspection conferences. 30 U.S.C. § 813(f ); 30

C.F.R. § 40.1.

The importance of maintaining robust mine safety

compliance, including providing access to miners’ representatives, cannot be overstated in light of the recent

history of mining disasters. Massey Energy’s Upper

Big Branch mining disaster that killed 29 miners in

2010 was the worst such disaster in 40 years.10 When

U.S. Dep’t of Labor, Mine Safety and Health Administration, Report of Investigation, May 9, 2007, available at:

workers and families at the non-unionized mine asked

the United Mine Workers of America to represent them

in the subsequent investigation, the union’s access

generated a comprehensive report on the mining disaster that resulted in government investigations and

prosecutions.11

3. U.S. Department of Agriculture’s Food

Safety and Inspection Service and the

U.S. Food and Drug Administration.

To ensure that the commercial supply of meat,

poultry, and egg products is safe for consumption and

accurately labeled, the U.S. Department of Agriculture’s Food Safety and Inspection Service (“FSIS”) employs thousands of inspectors with the authority to

access the property of privately-owned food production

facilities. The Federal Meat Inspection Act, 21 U.S.C.

§ 642, permits duly authorized representatives to access places of business to examine facilities.

In accordance with U.S. Department of Agriculture (“USDA”) regulations, most production facilities

are required to provide permanent, rent-free ofﬁce

https://www.amsj.com.au/wp-content/uploads/2020/01/MSHASago-Report-of-Investigation.pdf.

Howard Berkes, Union: W.VA. Mine Disaster was Industrial

Homicide, NPR (Oct. 25, 2011), available at: https://www.npr.org/

sections/thetwo-way/2011/10/25/141681614/union-w-va-minedisaster-was-industrial-homicide. See U.S. Dep’t of Justice, Former Massey Energy CEO Sentenced to a Year in Federal Prison

(Apr. 6, 2016), available at: https://www.justice.gov/opa/pr/formermassey-energy-ceo-sentenced-year-federal-prison.

space for the exclusive use of FSIS inspectors. 9 C.F.R.

§ 307.1. The Agricultural Marketing Act of 1946,

7 U.S.C. § 1624(a), grants the Secretary of Agriculture authority to enter into contracts with private

ﬁrms and other individuals to inspect, compile reports

and surveys, and perform other functions. In other

words, the USDA statute and regulations mandate

that private property owners grant permanent access

to outsiders for the purpose of worker and public

health. No one would assert a taking here.

Similarly, the Food and Drug Administration

(“FDA”), under the Food Safety Modernization Act

(“FSMA”), has enforcement powers that grant it the

power to conduct investigations and enforce safety

standards. 21 U.S.C. § 2224(c). Responding to recent

history of produce contamination, the FSMA mandates

government inspections of private food facilities and

establishes an inspection frequency based on the facility’s risk of potential contamination. FDA inspectors

and third parties thus are permitted to access privately-owned food production facilities.12

Before Congress passed the FSMA in 2011, a number of food safety failures underscored the urgent

need for public regulation of food supply chains. The

See, e.g., Reneé Johnson, The Federal Food Safety System:

A Primer, Congressional Research Service (Dec. 16, 2016),

https://fas.org/sgp/crs/misc/RS22600.pdf; and FSMA Final Rule on

Accredited Third-Party Certiﬁcation, U.S. Food and Drug Admin.

(Nov. 2015), https://www.fda.gov/food/food-safety-modernizationact-fsma/fsma-ﬁnal-rule-accredited-third-party-certiﬁcation.

infamous 2006 e.coli outbreak resulting from bagged

spinach highlighted the government’s inability to adequately inspect and regulate food supply chains. Those

failures contributed to a difﬁcult-to-contain outbreak

that led to nearly 200 consumer illnesses and three

deaths resulting from the contaminated produce.13 The

FSMA, by authorizing the FDA and outside inspectors

to access private food facilities, creates a regulatory regime that ensures that food contamination can be prevented and contained through on-site inspections.14

These are common regulations of commercial activity that require the state’s and authorized users’

temporary access to private property. They are the

foundation of the nation’s food safety, ensuring that the

public can purchase and enjoy food without risk of illness or death. Yet Petitioners’ argument perilously

opens the door to Fifth Amendment challenges to these

and other governmental regulatory activities critical to

the health and safety of workers and the public.

Libby Sander, Source of Deadly E.coli Is Found, The New

York Times (Oct. 13, 2006), https://www.nytimes.com/2006/10/13/

us/13spinach.html.

Under the U.S. Warehouse Act, 7 C.F.R. § 869.108, warehouse operators must permit any agent of the Department of Agriculture to enter and inspect or examine any licensed warehouse,

ofﬁces of the warehouse operator, books, records, papers, and accounts.

III. Anti-Discrimination Rules Limiting Employers’ Right to Exclude Workers and Individuals are in Jeopardy Under Petitioners’

Argument.

There is a long history of businesses challenging

anti-discrimination laws as unconstitutional takings that infringe on their property rights to exclude

whomever they wish from their property. See, e.g.,

Commonwealth v. Beasy, 386 S.W.2d 444, 446-47 (Ky.

1965) (rejecting restaurant owner’s arguments that

Louisville, Kentucky ordinance prohibiting discrimination on the basis of race, color, religious beliefs, ancestry, or national origin violated his constitutional

rights of property, including his rights under the

Takings Clause of the Kentucky State Constitution);

Pinnock v. Int’l House of Pancakes Franchisee, 844

F. Supp. 574, 586-89 (S.D. Cal. 1993) (rejecting business owner’s arguments that required alterations to

property to make restaurant wheelchair-accessible under the Americans with Disabilities Act was an unconstitutional taking). The Court has consistently rejected

such arguments, most famously in Heart of Atlanta

Motel, supra, 379 U.S. at 258-60 (1964) (ﬁnding that a

company “has no ‘right’ to select its guests as it sees ﬁt,

free from governmental regulation”).15 But a ruling for

Petitioners would place that jurisprudence in jeopardy.

Scholars have recognized that, as a doctrinal matter, Heart

of Atlanta resolved such Takings Clause and property rights challenges to anti-discrimination statutes. Joseph William Singer,

No Right to Exclude: Public Accommodations and Private Property, 90 NW. U. L. REV. 1283, 1302 (1996) (explaining that the

The Institute for Justice, writing in support of Petitioners as amicus curiae, argues that “Governmentsanctioned physical invasions of private property almost always constitute a taking.” Amicus Brief of Instit. for Justice at 7. Other amici go further, arguing

that “any interference with the ‘right to exclude’ . . . is

a taking of that fundamental attribute” of property

rights. Amicus Brief of Cato Inst. at 2; see also Amicus

Brief of Mountain States Legal Foundation at 9, 21-26

(arguing that “the right to exclude others is the sine

qua non of property rights, not some inconsequential

element of the whole that can be tossed aside without

thought,” and that the “bundle of sticks” conception of

property rights should be retired). But this radical conception of government regulation and view of the nature of property rights threatens the foundations of

well-established anti-discrimination law.

Thus, under Petitioners’ theory of the case, Title

VII of the Civil Rights Act and analogous federal civil

rights laws have been and could be argued to impermissibly sanction a taking insofar as they require

constitutionality of the Civil Rights Act of 1964 was “sufﬁciently

in question that it took a decision of the Supreme Court to lay to

rest contentions that it unlawfully took property rights without

just compensation”) (citing Heart of Atlanta, 379 U.S. at 258-61,

and collecting older cases); Samuel R. Bagenstos, The Unrelenting

Libertarian Challenge to Public Accommodations Law, 66 STAN.

L. REV. 1205, 1220-21 (2014) (“[A]s a doctrinal matter, the Supreme Court’s Heart of Atlanta decision resolved the propertyand-contract challenge to Title II of the Civil Rights Act.”). Courts

also recognized that Heart of Atlanta had settled such questions.

See, e.g., Beasy, 386 S.W.2d at 446-47; Twitty v. Vogue Theatre

Corp., 242 F. Supp. 281, 284-85 (M.D. Fla. 1965).

employers to permit “physical invasions” of their property by employees that they might otherwise wish to

exclude on the basis of race, color, national origin, sex,

disability, or age. An employer who wishes to exclude a

Black employee could be emboldened to argue that Title VII constitutes a taking of its “right to exclude,” and

thus a per se taking. See Amicus Brief of Cato Inst. at

15 (“Except where there are obvious reciprocal advantages, the Court should expand the Loretto per se

takings test to cover all interferences with a fundamental attribute of ownership, including the right to

exclude—no matter the method (e.g., easements) or instrumentality (e.g., union organizers) through which it

is achieved.”) Similarly, the Americans with Disabilities Act of 1990 (“ADA”) could be argued to constitute

a taking insofar as it requires businesses to make reasonable accommodations that permit entry onto their

property by customers they might otherwise wish to

exclude on the basis of their disability. A business

owner could thus not only challenge the ADA’s reasonable accommodation requirements as a taking but also

demand that the government pay for the cost of a

ramp. See Amicus Brief of W. Growers Assoc. et al. at

10 (“Neither by itself, nor through authorizing others,

may a public agency invade the right of private property owners to exclude third parties from their land—

not without compensation.”).

While courts have historically rejected such absolutist arguments about the impact of civil rights laws

on property rights, particularly given the government’s compelling interest in protecting and addressing

discrimination,16 a ruling here in favor of Petitioners

would embolden employers to resurrect such arguments, thereby threatening critical civil rights protections.

IV. Many workers who will be impacted by

this ruling are disproportionately people

of color and immigrants, are low-paid and

subject to wage theft and work-related illness and injury, and benefit from jobsite

access by experts and third parties.

The standards at issue in this case impact millions

of low-paid workers, including in agricultural and nonagricultural sectors. In this brief, so as not to repeat

arguments made by others, amici focus on the more

than 61 million workers, over a third of all U.S. workers, who labor in non-agricultural on-premises jobs,

including in the retail, food service, hotel, hospital,

nursing home, construction, mining, janitorial, security, landscaping, warehousing, car wash, meat and

food processing, apparel manufacturing, dry-cleaning

and laundry, beauty and nail salon, and childcare

sectors.17 According to government projections, onpremises jobs that require reporting to a worksite will

See, e.g., People v. King, 18 N.E. 245, 248-49 (N.Y. 1888)

(rejecting property rights challenge to public accommodations

statute prohibiting discrimination on basis of race, color, or previous condition of servitude and emphasizing the public interest

in preventing racial discrimination between citizens).

National Employment Law Project (“NELP”) analysis of

pooled American Community Survey microdata, 2015-2019,

https://data.census.gov/mdat/#/search?ds=ACSPUMS5Y2019.

maintain their prevalence in the coming decade.18

These jobs that enable U.S. consumers to meet basic

needs often leave the workers who perform them

struggling to meet their own. Long-standing enforcement mechanisms that require worksite access by

third parties to ensure compliance are critical to

worker and public protections. The stakes could not be

higher for the workers in these jobs.

Workers who are Black, indigenous, people of color,

and immigrants are overrepresented in on-premises

jobs. People of color comprise 37.1 percent of the overall workforce, but 46.1 percent of on-premises workers.19 Black workers are overrepresented by over 100

percent in hospital, nursing home, and security work:

while Black workers are 11.8 percent of all workers,

they are 25.8 percent of low-paid hospital and nursing

home workers such as nursing assistants and phlebotomists, and 30.5 percent of private security guards.20

Latinx workers are overrepresented by over 100 percent in hotel and landscaping work: Latinx workers

are 16.7 of all workers, but 38.2 percent of hotel

workers and 34.7 percent of landscaping and

NELP analysis of U.S. Bureau of Labor Statistics Employment Projections, 2019-2029, https://www.bls.gov/emp/tables/empby-detailed-occupation.htm.

NELP analysis of pooled American Community Survey

microdata, 2015-2019, https://data.census.gov/mdat/#/search?ds=

ACSPUMS5Y2019.

NELP analysis of pooled American Community Survey

microdata, 2015-2019, https://data.census.gov/mdat/#/search?ds=

ACSPUMS5Y2019.

groundskeeping workers.21 Asian and Paciﬁc Islander

workers are overrepresented by over 100 percent in salons and garment factories: Asian and Paciﬁc Islander

workers are 5.8 percent of all workers, but 18.2 of

beauty and nail salon workers, and 11.7 percent apparel manufacturing workers.22 Immigrant workers,

including undocumented workers, are approximately

17.2 percent of all workers but 21.0 percent of onpremises workers.23 Workers who were born outside

the U.S. are especially overrepresented in garment factories, food processing plants, industrial laundries, and

hotels—comprising between 30 and 42 percent of

workers at those sites.24 Approximately 41.8 percent of

workers of color and 42.1 percent of immigrant workers hold an on-premises job, compared to 28.7 percent

of white, non-Hispanic workers and 32.9 percent of

workers born in the U.S.25

NELP analysis of pooled American Community Survey

microdata, 2015-2019, https://data.census.gov/mdat/#/search?ds=

ACSPUMS5Y2019.

NELP analysis of pooled American Community Survey

microdata, 2015-2019, https://data.census.gov/mdat/#/search?ds=

ACSPUMS5Y2019.

NELP analysis of pooled American Community Survey

microdata, 2015-2019, https://data.census.gov/mdat/#/search?ds=

ACSPUMS5Y2019.

NELP analysis of pooled American Community Survey

microdata, 2015-2019, https://data.census.gov/mdat/#/search?ds=

ACSPUMS5Y2019.

NELP analysis of pooled American Community Survey

microdata, 2015-2019, https://data.census.gov/mdat/#/search?ds=

ACSPUMS5Y2019.

Companies in these sectors routinely invite contractors and subcontractors onto their property, creating multi-layered employment relationships that

can create race-to-the-bottom dynamics with stifling

effects on job quality and the power workers have to

negotiate terms of work and exercise their rights.26

Subcontracting to temporary help and staffing agencies in warehousing, construction, personal care,

manufacturing, agricultural and retail sectors place

downward pressure on wages, benefits, and safety

standards.27 These practices make jobs contingent and

diffuse accountability for labor standards, reducing

worker bargaining power and increasing the likelihood

of labor standards violations.

Low pay and working poverty are particular problems for too many on-premises workers. In 2019, median wages for dozens of categories of on-premises

workers were well below the median for all workers,

$49,041, and below the equivalent of a $15 hourly

wage. Workers earning median wages less than the

See, e.g., NAT’L EMPL. L. PROJ., Who’s the Boss: Restoring

Accountability for Outsourced Work, 2014, available at: https://www.

nelp.org/publication/whos-the-boss-restoring-accountability-forlabor-standards-in-outsourced-work/.

Laura Padin and Maya Pinto, Lasting Solutions for America’s Temporary Workers, National Employment Law Project,

Aug. 26, 2020, https://www.nelp.org/publication/lasting-solutionsamericas-temporary-workers/; Christine Owens, Catherine Ruckelshaus, Laura Padin, Comments on RIN 1235-AA26: Joint Employer Status Under the Fair Labor Standards Act, National

Employment Law Project, June 25, 2019, https://s27147.pcdn.co/

wp-content/uploads/Comments-USDOL-Joint-Employer-StatusFLSA.pdf.

equivalent of $15 an hour, or $31,200 annually for a

full-time year-round worker, included dishwashers and

cooks at restaurants, housekeeping cleaners and desk

clerks at hotels, nursing assistants and orderlies at

hospitals and nursing homes, helpers at construction

sites, janitors and security guards and landscapers at

commercial buildings, stockers and package handlers

at warehouses, car wash workers, butchers at food processing facilities, sewing machine operators at garment factories, laundry and dry-cleaning workers,

manicurists and skin specialists at salons, and childcare workers at daycare facilities.28 Across sectors in

the U.S., 23.0 percent of all workers receive incomes

that place them under 200 percent of the federal poverty threshold; for on-premises workers, that share is

35.2 percent—well over one-third of workers who report that their main job is in on-premises work earn an

annual wage that makes them eligible for several

types of public assistance.29

Compounding the challenge of subsisting on income from a job with a low pay rate is the cruel reality

that wage theft rates tend to be higher among low-paid

workers30 and those with less bargaining power—

NELP analysis of pooled American Community Survey

microdata, 2015-2019, https://data.census.gov/mdat/#/search?ds=

ACSPUMS5Y2019.

NELP analysis of pooled American Community Survey

microdata, 2015-2019.

David Cooper and Teresa Kroeger, Employers steal billions

from workers’ paychecks each year, Economic Policy Institute,

May 10, 2017, https://www.epi.org/publication/employers-stealbillions-from-workers-paychecks-each-year/.

related to factors like immigration status31 and workplace ﬁssuring.32 Due to a combination of meager pay

and pervasive employer noncompliance with federal

wage and hour and other labor laws, several on-premises

job sectors—agricultural and well as retail, food service, hotel, construction, janitorial, landscaping, apparel manufacturing, beauty and nail salon, security,

and childcare—have been distinguished as “low wage,

high violation” by the U.S. Department of Labor, under

bipartisan administrations.33 The DOL has undertaken some proactive enforcement action in these industries to root out wage theft. Both complaint-driven

and strategic enforcement action by the Wage and

Hour Division found that businesses in the on-premises retail, food service, hotel, hospital, nursing home,

construction, mining, janitorial, security, landscaping,

warehousing, car wash, meat and food processing, apparel manufacturing, dry-cleaning and laundry, beauty

and nail salon, and childcare sectors owed $567 million

in back wages for over one million Fair Labor Standards Act violations found in cases ending between 2010

and 2017 (the last year for which data is available).

Over half a billion dollars in wage theft penalties is

staggering, but represents only a fraction of wages

Michael Felsen and M. Patricia Smith, Wage Theft Is a

Real National Emergency, The American Prospect, Mar. 5, 2019,

https://prospect.org/power/wage-theft-real-national-emergency/.

David Weil, The Fissured Workplace, Why Work Became So

Bad for So Many and What Can Be Done to Improve It, May 2017.

U.S. Dep’t of Labor, Wage and Hour Division,

https://www.dol.gov/agencies/whd/data/charts/low-wage-highviolation-industries.

stolen from on-premises workers. A 2017 analysis by

the Economic Policy Institute (“EPI”), building on a

seminal 2009 study of wage theft in low-paid sectors,

estimated that employers stole $50 billion from lowpaid workers, a large share of them in on-premises

sectors, in 2016.34 Another EPI analysis estimated that

employers effectively steal $15 billion in wages from

workers each year via minimum wage violations alone,

and that this form of wage theft is more prevalent in

low-paid sectors,35 which employ millions of on-premises workers.

According to a recent nationally-representative

survey of U.S. workers, during the COVID-19 pandemic, on-premises workers in farming, healthcare

support, food services, building services, personal

care, retail, construction and extraction, and production work were more likely to report wage theft. The

survey found that 11.4 percent of workers in those

low-paid on-premises sectors reported that they had

Celine McNicholas, Zane Mokhiber, and Adam Chaikof,

Two billion dollars in stolen wages were recovered for workers in

2015 and 2016—and that’s just a drop in the bucket, Economic

Policy Institute, Dec. 13, 2017, https://www.epi.org/publication/

two-billion-dollars-in-stolen-wages-were-recovered-for-workersin-2015-and-2016-and-thats-just-a-drop-in-the-bucket/; Annette

Bernhardt et al., Broken Laws, Unprotected Workers: Violations

of Employment and Labor Laws in America’s Cities, 2009,

https://www.nelp.org/wp-content/uploads/2015/03/BrokenLawsReport2009.pdf.

David Cooper and Teresa Kroeger, Employers steal billions

from workers’ paychecks each year, Economic Policy Institute,

May 10, 2017, https://www.epi.org/publication/employers-stealbillions-from-workers-paychecks-each-year/.

experienced at least one of four forms of wage theft—

not being paid the correct wage rate, not being paid for

all hours worked, having an employer keep a portion

of tips, or having the cost of personal protective equipment deducted from pay—between March and October

2020, compared to 7.3 of all other workers.36

Nonfatal work-related illness and injury rates for

many categories of on-premises work are high. In 2019,

the overall rate of nonfatal occupational illnesses and

injuries in private industry was 2.8 cases per 100 fulltime equivalent workers.37 The nonfatal work-related

illness and injury rate was as high as 7.0 for construction, up to 4.8 for mining, up to 6.9 for meat and food

processing, 5.9 for nursing homes, 5.7 for industrial

laundries, 5.5 for hospitals, 5.4 for commercial bakeries, and 4.5 for hotels.38

NELP analysis of ﬁndings from a nationally-representative survey of U.S. workers administered by the research ﬁrm

SSRS September 7 to October 16, 2020. The difference in reported

wage theft between workers in designated on-premises sectors

and those in other sectors is signiﬁcant at a .95 conﬁdence level.

Maya Pinto, Rakeen Mabud, Amity Paye, and Sanjay Pinto,

Foundations for a Just and Inclusive Recovery, NAT’L EMPL. L.

PROJ. et al. (Feb. 3, 2021), available at: https://www.nelp.org/

wp-content/uploads/Foundations-for-Just-Inclusive-RecoveryReport.pdf.

Bureau of Labor Statistics, U.S. Dep’t of Labor, Survey

of Occupational Injuries and Illnesses, 2019, https://www.bls.gov/

web/osh/summ1_00.htm.

Bureau of Labor Statistics, U.S. Dep’t of Labor, Survey

of Occupational Injuries and Illnesses, 2019, https://www.bls.gov/

web/osh/summ1_00.htm.

In 2010, the Occupational Safety and Health

Administration launched the Severe Violators Enforcement Program to focus enforcement efforts on

employers demonstrating “willful” or “repeated” violations of their Occupational Safety and Health Act obligations related to severe occupational hazards and

workplace fatalities and catastrophes.39 Among the

692 businesses that have earned a place on the OSHA

list of “Severe Violators” in the last decade, a large majority, at least 442, are employers in low-paid on-premises sectors, most in the construction sector.40

Since March 2020, many workers in low-paid onpremises jobs have contracted the deadly COVID-19

virus at work. Workplace transmission has been a key

driver of viral spread,41 has had a devastating effect on

communities of color and immigrant communities in

U.S. Dep’t of Labor, Occupational Safety and Health Administration, OSHA’s severe violator enforcement directive effective June 18, June 18, 2010, https://www.osha.gov/news/newsreleases/

trade/06182010.

U.S. Dep’t of Labor, Occupational Safety and Health Administration, Severe Violators Enforcement Program Case Log,

Jan. 1, 2021, https://www.osha.gov/enforcement#svep.

Charles A. Taylor, Christopher Boulos, and Douglas Almond,

Livestock plants and COVID-19 transmission, Proceedings of the

National Academy of Sciences of the Unites States of America,

Dec. 15, 2020, 117(5) 31706-31715, https://www.pnas.org/content/

117/50/31706; David P. Bui, Keegan McCaffrey, Michael Friedrichs et al., Racial and Ethnic Disparities Among COVID-19

Cases in Workplace Outbreaks by Industry Sector—Utah, March

6–June 5, 2020, Morbidity and Mortality Weekly Report, U.S.

Centers for Disease Control and Prevention, Aug. 21, 2020.

69(33)1133-1138, http://dx.doi.org/10.15585/mmwr.mm6933e3.

particular,42 and is growing racial life expectancy

gaps.43 Anticipating more robust workplace regulations and standards at the federal level that require

employers to adjust operational design for infectious

disease control to mitigate workplace spread of COVID19 and similar viruses on the horizon,44 third-party

access will be critical for compliance and worker and

public safety.

Addressing low pay, wage theft, and health and

safety risks associated with on-premises jobs, especially in the current recessionary and pandemic environment, is critical to stemming the growth of racial

Ken Jacobs, Tia Koonse, Jennifer Ray, Workers as Health

Monitors: An Assessment of LA County’s Workplace Public Health

Council Proposal, University of California at Berkeley, July 21,

2020, https://laborcenter.berkeley.edu/workers-as-health-monitors-anassessment-of-la-countys-workplace-public-health-council-proposal/;

Rajiv Sethi et al., Who Is Dying, and Why? COVID-19 Rapid Response Impact Initiative Working Paper 19, Center for Ethics,

Harvard University, May 20, 2020, https://ethics.harvard.edu/files/

center-for-ethics/ﬁles/19cwhoisdying.pdf?m=1591386895; Data show

COVID-19 is hitting essential workers and people of color hardest,

Data for Justice Project, American Civil Liberties Union, Apr. 7,

2020, https://data.aclum.org/2020/04/07/covid-19-disproportionatelyaffects-vulnerable-populations-in-boston/?ms_aff=MA&initms_aff=

MA&ms_chan=tw&initms_chan=tw.

Theresa Andrasfay and Noreen Goldman, Reductions in

2020 US life expectancy due to COVID-19 and the disproportionate impact on the Black and Latino populations (Oct. 15, 2020)

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7523145/.

Executive Order on Protecting Worker Health and

Safety, Jan. 21, 2021, https://www.whitehouse.gov/brieﬁng-room/

presidential-actions/2021/01/21/executive-order-protecting-workerhealth-and-safety/.

income and wealth inequality and racial health disparities. Such efforts will require policies and practices

that enable communication with workers in their jobs,

access to third-party experts, and policies that increase

the power of workers in these jobs to make informed

choices and to exercise their long-held rights, including

to join a union.45

---------------------------------♦---------------------------------

CONCLUSION

This Court’s endorsement of Petitioners’ taking argument would grievously undermine state, local, and

the federal government’s ability to make and enforce

laws that protect the rights of workers and the public.

Those ﬂoodgates should properly remain closed.

In 2020, a Gallup poll showed a nearly 50-year-high approval rate of unions—65 percent, across all demographic groupings. Support for unions was highest among the young: 71 percent

of those 18-34, compared to 63 percent of those in other age

groups. Non-white respondents approved of unions by 70 percent,

compared with whites at 64 percent, and women were slightly

more likely to approve of unions—67 percent—compared to 63

percent of men. Megan Brenan, At 65%, Approval of Labor Unions

in U.S. Remains High, Gallup (Sep. 3, 2020), available at:

https://news.gallup.com/poll/318980/approval-labor-unions-remainshigh.aspx.

For the foregoing reasons, the Court should afﬁrm

the Ninth Circuit’s judgment.

Dated: February 10, 2021

Respectfully submitted,

CATHERINE K. RUCKELSHAUS

Counsel of Record

BRIAN CHEN

NAJAH FARLEY

HUGH BARAN

NATIONAL EMPLOYMENT LAW

PROJECT, INC.

90 Broad Street, Suite 1101

New York, NY 10004

(646) 693-8221

cruckelshaus@nelp.org

Counsel for Amici Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.