Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Agriculture’

US to Workers Killed on Small Farms: We Don’t Care

Wednesday, August 1st, 2018

Some workers’ lives are worth more than others, according to Congress.

If you’re killed in a factory or construction site due to blatantly unsafe conditions allowed by your employer, OSHA will investigate and likely issue citations and fine the employer if violations of OSHA standards are identified.

But if you’re an employee in a small farm (under 11 employees), and clear violations of OSHA standards lead to your untimely death, Congress has told OSHA “hands off!”

Language in OSHA’s appropriations bill since the 1970’s has prohibited OSHA from conducting any enforcement activities on small farms (as long as they don’t also maintain a temporary labor camp). That means OSHA can’t investigate deaths on small farms, much less issue citations or fine an employer. And it doesn’t matter if it’s just one death, or 10 deaths. OSHA Is not allowed to set foot on the premises.

Congress has a similar prohibition against OSHA enforcement of safety violations in certain small businesses. But in this case, there is an exemption to the exemption.  OSHA is allowed to investigate and cite in the event of a worker complaint or a fatality.  But not even a worker complaint or a bunch of dead workers will get OSHA onto a small farm.

Maurice Kellogg had the bad fortune of getting himself killed on a “farm” that employed fewer than 11 employees.  Although OSHA has a grain facilities standard since the late 1980s that has been remarkably successful in preventing deadly grain facility explosions, the agency “dropped its investigation in late June after learning the privately-owned elevator had too few employees to fall within its jurisdiction.”

And just to add insult to injury, the facility is “also exempt from regular inspections by the Nebraska State Fire Marshal’s Office.”

So, no inspection, no investigation, no findings of why the explosion happened, who was at fault or how to prevent similar tragedies in the future.

Background

Now I don’t know anything about this specific case that I haven’t read in the newspaper, but I do have extensive experience working with the powerful agriculture lobby which gets incensed that the federal government would ever think of meddling in small farms’ right to kill its employees without the interference of government bureaucrats.

After OSHA mistakenly cited a farm that fell under the agriculture exemption in 2012, the agency re-wrote guidance defining where the agency was and was not allowed to enforce in small agricultural facilities.  It turns out that figuring out exactly what a “farm” is isn’t easy. OSHA determined that a farm is where you grow stuff, but what about other processes that exist on a farm — such as processing of products (like apples into juice in machines that might crush hands or electrocute workers) or storage of agricultural products (like grain in grain silos that might explode).

OSHA determined in a “policy clarification” issued in 2014 that operation such as ” storing, fumigating, and drying crops grown on the farm” were exempt as long as they stored or processed their own grain or other products. But if the facility performs activities

that are not related to farming operations and are not necessary to gain economic value from products produced on the farm, those activities are not exempt from OSHA enforcement. For example, if an exempt small farm maintains a grain handling operation storing and selling grain grown on other farms, the grain handling operation would not be exempt from OSHA enforcement under the appropriations rider.

So, we are forced to assume in this case, that Andersen Farms, Inc. was only storing its own grain in the elevator that exploded, killing Maurice Kellogg.  But we will never learn why the facility exploded, what safe work practices were violated, or how future incidents could be prevented.

Because, according to Congress and the agriculture lobby, the official policy of the United States is “We don’t care.”

What Is To Be Done?

Fighting the powerful agriculture lobby (especially if you’re allegedly affecting “small family farms”) is a fools errand. It’s the so-called “third rail” of regulation.

We did make attempts during the Obama administration to soften the exemption — to at least allow OSHA to investigate a fatality, without actually issuing citations. At least in that case, valuable lessons might be learned.

But no dice.  Not even workers’ lives can get in the way of free enterprise on small farm.

This article was originally published at Confined Space on July 24, 2018. Reprinted with permission.

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and I spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

Overtime for farmworkers passes California legislature, heads to governor's desk

Thursday, September 8th, 2016

LauraClawson

The California legislature has passed a bill that would give farmworkers the same overtime protections as other workers. Now the question is whether Gov. Jerry Brown, who has not taken a position on the proposal, will sign the expansion from the state’s current law, which requires employers to pay time-and-a-half after farmworkers put in 10 hours in a day or 60 hours in a week. Other workers get, and farmworkers stand to get, overtime pay after eight hours in a day or 40 in a week.

 
Getting this bill passed required serious legislative maneuvering by Assemblywoman Lorena Gonzalez:

The Assembly rejected the proposal in June, when eight Democrats opposed it and another six refused to vote. In what Gonzalez has described as an unprecedented move to revive the bill, she worked around the Legislature’s rules and reinserted the proposal in another bill, angering Republicans who objected to the breach in procedure.

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Gonzalez waged a social media campaign to pressure her Democratic colleagues to back AB1066; agreed to compromises to win votes, including giving small farms an extra three years to pay more overtime; and led a squad of Democratic allies in a 24-hour fast paying homage to the weeks long fast that legendary farmworker activist Cesar Chavez staged when the “Salad Bowl” strike of 1970 initially failed.

 

 

Federal law excludes agricultural workers from overtime protections, so California is already ahead—but these workers deserve the same protections and rights as everyone else.

This article originally appeared at DailyKOS.com on August 24, 2016. Reprinted with permission.

Laura Clawson is a Daily Kos contributing editor since December 2006. Labor editor since 2011.

Heat kills California farmworkers, but the state won't always admit it

Monday, November 23rd, 2015

LauraClawsonAgricultural workers have fewer job protections than most other workers even as they do physically grueling labor for low pay. It’s a vicious circle—most of the people who work in the fields come from vulnerable groups, and the low wages and lack of protections keep them vulnerable. California’s heat is one significant source of illness and even death for farmworkers. But you might not know that from the state’s official statistics:

While the agency investigated 55 agriculture deaths between 2008 and 2014, it categorized six as heat related, according to data obtained by The Desert Sun. Of the 209 farmworker illnesses investigated in the same period, Cal/OSHA confirmed 97 as heat related.

Farmworker fatalities peaked at 15 in 2014. However, Cal/OSHA found that none of those fatalities were heat related. At least 13 of those farmworkers did not belong to a union, including a man who died in 109-degree heat after picking lemons Sept. 2 in a Mecca field. […]

Although California passed the groundbreaking Heat Illness Prevention act in 2005, Cal/OSHA confirms only 13 farmworkers have died in the decade since then from heat-related deaths. The confirmed deaths represent just a fraction of the total, according to the United Farm Workers union’s recently settled lawsuit, which pegs the number of deaths due to heat in just the six years from 2005-2011 at more than double the 10-year number claimed by Cal/OSHA.

Similarly, the state investigated 209 possibly heat-related illnesses between 2008 and 2014, but only confirmed 97 of them as officially heat-related. Even in cases where, gosh, the worker was definitely sick (or dead) after working in hot weather, and had the symptoms of heat-related illness, Cal/OSHA’s standards are sometimes just too high. And if an illness or death wasn’t officially related to heat, the employer doesn’t get cited for it. Funny how that works.

But despite the low number of illnesses and deaths officially attributed to heat, we do know that, in California, the agriculture industry has more heat-related illnesses and deaths than any other industry involving outdoor work, like construction. Which gets us back to the weak legal protections for agriculture workers.

This blog was originally posted on Daily Kos on November 20, 2015. Reprinted with permission.

About the Author: Laura Clawson has been a Daily Kos contributing editor since December 2006  and Labor editor since 2011.

N.M. Field and Dairy Laborers Win Right To Workers’ Comp—Court Calls Exemption ‘Absurd’

Tuesday, July 21st, 2015

The New Mexico Court of Appeals ruled in June that excluding field and ranch workers from workers’ comp protection is unconstitutional. It was the second victory for New Mexico’s farmworkers in less than a year—and that’s big news in a low-wage sector made up primarily of immigrant workers, where victories tend to be few and far between.

The first victory came last August when farmworkers finally started getting paid the correct minimum wage. Farmworkers were routinely, and incorrectly, paid the federal minimum when they were entitled to the New Mexican minimum wage, which is 25 cents per hour higher. It only amounts to $8 or $10 a week, but it is significant for these workers, who are among the poorest in the United States.

And now, after six years of legal battles, the state Court of Appeals has upheld a District Court ruling that New Mexico’s farmworkers are not to be excluded from workers’ comp protection.

Farm work is among the most dangerous jobs in the United States, consistently ranking in the top 10 for injuries and death. The Center for Disease Control and Prevention has reported that 167 agricultural workers are injured every day. Despite this, only 12 states require full workers’ comp for farmworkers (13 now, including New Mexico); it’s optional in 16 states and required but limited in 21 others. Until the Court of Appeals’ decision, workers’ comp wasn’t required for New Mexico’s field workers or for ranch employees who worked directly with animals. That meant that on a dairy, for example, truck drivers and bookkeepers were covered, but milkers and workers moving the cows weren’t.

As In These Times reported in December 2014, on-the-job injuries are the rule, not the exception, in New Meixco’s dairy industry, and the lack of workers’ comp left some workers in dire economic straits:

Working with large animals poses a real risk of injury. In 2012, attorney Tess Wilkes was part of a team at the New Mexico Center on Law and Poverty (NMCLP) that interviewed about 60 workers from various dairies in the state. Almost 80 percent of the workers said they had never received any safety training.

Most of the cows are docile, but not all. “The younger ones are dangerous,” says Antonio Jiménez, who worked in a dairy outside of Roswell during high school. “They don’t know how to be milked and [they] kick. Sometimes the ones that have just given birth [are dangerous], too.” The NMCLP survey found that 53 percent of the workers interviewed had been injured on the job, often more than once, and sometimes seriously.

In March, Matías Soto was working as a milker at a dairy in southeastern New Mexico. Somehow, a bull had gotten mixed in with the cows and stuck in one of the milking parlor gates. As Soto was trying to free the bull, he says, “It lowered its head and attacked me, lifting me 6 or 7 feet in the air. I hit my head on the concrete floor.” His skull fractured. But, he says, he wasn’t taken to the ER in Artesia, about 40 miles away, for three hours. He then had to be airlifted to a hospital capable of handling his injury. The cost of the helicopter alone was more than $60,000, and Soto’s hospital bills were in “the tens of thousands of dollars,” says María Martínez Sánchez, a former attorney at the NMCLP who worked with Soto. And the dairy had no workers’ compensation insurance.

Its medical insurance covered Soto’s medical bills, but not all of the helicopter costs. Instead, says Martínez Sánchez, Soto went into debt, borrowing from friends and relatives, although he eventually received a small amount of money in a settlement with the dairy.

In 2009 NMCLP filed suit challenging the exclusion on behalf of three injured workers who had been denied workers’ comp based solely on the exclusion. Attorneys from the organization argued that excluding farm and ranch workers violated the state constitution’s equal protection clause.

In 2011, 2nd District Court Judge Valerie Huling ruled that the exclusion is, in fact, unconstitutional. The New Mexico Workers’ Comp Administration (WCA) appealed that decision, stating that the District Court had overstepped its jurisdiction. The WCA lost that appeal, and the three workers in the lawsuit had their cases heard and were awarded workers’ comp benefits. But the WCA argued that the District Court ruling applied only to those three workers. Employers took that as a cue to continue routinely denying coverage to all other farmworkers.

In February of this year, NMCLP attorney Tim Davis challenged that interpretation in a suit on behalf of two injured workers who had been denied workers’ comp benefits. Noe Rodriguez suffered a head injury when he was attacked by a bull at the dairy farm at which he worked and Maria Angélica Aguierre broke her arm when she slipped and fell in a chile field. The New Mexico Court of Appeals unanimously upheld the District Court’s ruling that the exclusion was unconstitutional . The court stated, “Our review of the history of workers’ compensation statutes back to 1929 has not revealed an articulable purpose for the exclusion” and that the exclusion was “without purpose or reason and leads to absurd results.”

The ruling doesn’t mean that Rodriquez and Aguierre will automatically receive workers’ comp benefits, bu it means that their claims, and the claims of other injured farmworkers, can now be heard.

Maria Martínez Sánchez, one of the lead attorneys on the 2009 case, says she is “very happy” with the appellate opinion. “This ruling finally tells agricultural employers that they … must care for their workers in the same way all other employers in New Mexico are required to do,” she says.

While advocates are heartened by the Court of Appeals ruling, they’re also realistic. Farmworkers in New Mexico and across the United States continue to work under harsh conditions for little pay. The majority of states don’t offer farmworkers full workers’ comp benefits; most deny them overtime pay and the right to collective bargaining. Wage theft is rampant, as is sexual harassment and abuse. As Martínez Sánchez says, “There’s still much work to be done.”

This blog was originally posted on In These Times on July 20, 2015. Reprinted with permission.

About the Author: The author’s name is Joseph Sorrentino. Joseph Sorrentino is a writer and photographer. He has been documenting the lives of agricultural workers on both sides of the U.S./Mexico border for 12 years.

Citing ‘Tradition,’ Big Ag Fights Reforms for Child Farmworkers

Thursday, March 29th, 2012

Michelle ChenAdvocates push for stronger protections during National Farmworker Awareness Week

“[When I was 12] they gave me my first knife. Week after week I was cutting myself. Every week I had a new scar. My hands have a lot of stories.”

–17-year-old boy who started working at age 11 in Michigan (Human Rights Watch)

America’s farm workers have always had it tough, toiling for endless hours in the fields under brutal conditions. But those workers do benefit from a unique income subsidy in the country’s industrial farming system: children.

In every region of the country, bountiful harvests are regularly gathered by the tender hands of child poverty: several hundred thousand kids work on farms, typically to help their families survive. Those children who deliver crisp peppers and sweet grapes to the mouths of other kids every day represent the devastating social toll of the dysfunctional food industry.

The Child Labor Coalition, which advocates for the rights of exploited children around the world, documents a cornupcopia of abuses in the backyard of a global superpower:

  • More children die in agriculture than in any other industry.
  • According to the National Institute of Occupational Safety and Health (NIOSH), between 1995 and 2002, an estimated 907 youth died on American farms—that’s well over 100 preventable deaths of youth per year.
  • In 2011, 12 of the 16 children under the age of 16 who suffered fatal occupational injuries worked in crop production, according to the Bureau of Labor Statistics.
  • When you include older children, more than half of all workers under age 18 who died from work-related injuries worked in crop production.

Advocates have for months been pressing the Labor Department to finalize a rule change that would help shield child farm workers from some of the most severe occupational hazards, such as handling pesticides and dangerous farm equipment, and would beef up protections for workers under age 16 (currently, children as young as 12 can legally work on farms, thanks to a loophole in federal labor law, and many younger ones work illegally).

The reforms would largely impact youth in the migrant communities that fuel the agricultural labor force, filled with poor and Latino workers who are extremely vulnerable to abuse.

Under the banner of National Farmworker Awareness Week (March 25-31, consumer and labor groups are working to educate communities about egregious conditions on farms. Now that organizations like the Florida-based Coalition of Immokalee Workers have begun to rattle the food industry with colorful worker- and consumer-driven campaigns, Washington should be ripe for long-overdue reforms to curb the worst forms of child labor.

But common decency has again been overshadowed by a well-oiled campaign by the agricultural industry lobby, which has pushed to block the rule changes by claiming that child labor reflects good old American values.

The “Preserving America’s Family Farms Act,” proposed by Rep. Tom Latham of Iowa, targets the pending reforms as a threat to a time-honored “tradition” of child farm labor. Evoking an imaginary pastoral ideal of the American homestead, the bill argues that the strengthening child labor protections would “adversely impact the long standing tradition of youth working on farms to gain valuable skills and lessons on hard work, character, and leadership” and would hurt their opportunities to “gain experiential learning and hands-on skills.”

Apparently, a great way to build kids’ character is pushing them into backbreaking, dangerous labor—rather than going to school or otherwise developing themselves in a way that’s less profitable for agribusiness. You might wonder how many of the bill’s sponsors regularly send their children to pick produce all day to cultivate “leadership” skills.

The saddest aspect of this political debate around farm labor is that the most systemic abuses would not be stopped by just tightening child regulations—not even by enacting the stronger restrictions on child labor that lawmakers have previously proposed in the Children’s Act for Responsible Employment. Whatever the law says, the marginalization of the farm workforce makes comprehensive enforcement nearly impossible.

Justin Feldman of Public Citizen told In These Times, “People are afraid because of immigration status, because of limited English ability, because of poverty and all sorts of issues. They’re afraid to come forward to authorities and report.”

In The Atlantic, restaurant industry veteran Helene York cites the underlying the economic dilemma: “Migrant families will lose their children’s wages and would be unable to move with available work. What’s needed is more income paid to laborers for the really hard work.”

Feldman noted, “one of the reasons that we have children and whole families working on farms is to subsidize the underpayment of the workers…. Looking at it holistically, we need to broaden immigrant rights and workers rights, and not much can change until that happens.”

Child labor is a symptom of a monstrous blight across the food system: consumers relish cheap prices and companies reap profits, and workers pay the human cost. Maybe that is an American value, of sorts.

This blog originally appeared in Working in These Times on March 28, 2012. Reprinted with permission.

About the Author: Michelle Chen is a contributing editor at In These Times. She is a regular contributor to the labor rights blog Working In These TimesColorlines.com, and Pacifica’s WBAI. Her work has also appeared in The Nation, Alternet, Ms. Magazine, Newsday, and her old zine, cain. Follow her on Twitter at @meeshellchen or reach her at michellechen@ inthesetimes.com.

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