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How Corporations Are Testing a Fringe Legal Theory That Could Derail the Labor Movement and Undermine Workers’ Rights

— March 13, 2024

Corporations not only have a welcoming judiciary, but far greater resources, making these fights both difficult and expensive.

The U.S. Supreme Court has become an extension of the country’s far right, and parts of the federal judiciary at every level can be characterized similarly. Such judges are reshaping laws and rights once thought to be unshakable, especially as allied litigators tee-up vehicles through which the judges can reach their predetermined outcomes.

Just in the last few years, we’ve seen courts strike down long-standing precedents from reproductive rights protections to the basic ability to bring a claim under the Voting Rights Act. And now litigators motivated by ideology and/or corporate cash are inviting the courts to reinvent even more of the legal landscape.

For instance, last year the Supreme Court heard a case out of North Carolina that tested the validity of the “independent state legislature theory” – the idea that the U.S. Constitution gives state lawmakers exclusive control over how federal elections are conducted within their state with little to no oversight – which had the potential to upend American democracy as we know it. Thankfully, the Supreme Court ruled against the preposterous theory, but the fact that the Court voluntarily entertained an argument that radical should be a serious cause for concern.

The trend of testing fringe theories is not limited to “hot button” topics, however, but has reached all areas of the law, including labor law. Over the last few years, the labor movement has made unprecedented gains, including wage gains for hundreds of thousands of workers and updated contracts that protect workers against an ever-changing technology landscape. But this progress has prompted corporate litigators to turn to the courts, attempting to take advantage of the current judicial makeup through employing dangerous legal theories to stifle labor’s resurgence.

As someone who has spent much of my professional career representing advocates and workers fighting back against corporate agriculture giants, one of the most egregious arguments I’ve seen is that property rights supersede the rights of workers – a tactic that’s become increasingly popular in these corporate litigators’ playbooks. Property owners prioritize profit over the fair treatment of workers, and claim they have unassailable freedom to ignore notions of equity and human dignity because the work occurs on their land.

Agricultural Workers Deal with Chronic Stress, Poor Mental Health
Photo by Rodolfo Clix from Pexels

Whistleblower and animal rights groups challenged North Carolina’s Ag-Gag law claiming that it unconstitutionally criminalized revealing illegal and unethical workplace activities– particularly disclosures regarding animal cruelty  in the agriculture industry. The state argued that corporate property rights override the First Amendment freedom to share information learned on business grounds with the public, prosecutors, and legislators. The Supreme Court ultimately declined to hear the case, upholding a lower court’s ruling that these activities are, in fact, protected by the First Amendment. But had North Carolina and the state’s farm bureau been successful, there could have been devastating implications. Even the state’s Republican governor at the time the Ag-Gag bill was passed recognized the law would chill reporting of child and elder abuse.

We’re also seeing similar arguments in Colorado and New York, where corporate interests are using flimsy property rights arguments to try to invalidate state laws providing farmworkers the right to access essential services or engage in collective bargaining.

In 2021, Colorado passed an Agricultural Workers’ Rights law, ensuring that agricultural workers, whose long working hours, lack of transportation, and isolation often thwart their ability to see a doctor, clergy member, or attorney, have reasonable access to such key service providers, including (where necessary) at the sites where they work. Agribusinesses have sued to overturn portions of the law, claiming that an employer’s right to exclude people from their property supersedes a  worker’s right to vital services.

This trend of litigators stretching the law only appears to be gaining momentum with grassroots groups oftentimes left to defend the rule of law against corporations or wealthy organizations hellbent on upending it for their own personal gain. And while these activists and advocates are willing to take on these big fights, they are hamstrung by a lack of resources needed to adequately engage.

Corporations not only have a welcoming judiciary, but far greater resources, making these fights both difficult and expensive. Advocates and attorneys in this movement have been forced to largely focus their limited capital on cases that deal with national precedents, and are thus sometimes unable to address the more immediate needs of impacted communities.

We need to ensure independent litigators across the country are connecting and sharing best practices to help them feel fully equipped to win these fights and effectively push back against these claims before they gain even more steam. If this sounds like something you’d like to be a part of, sign up for email updates from FarmSTAND.

Together, we can take on those determined to bend and distort the law and build a stronger community in the process.

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