Landmark Lawsuit Accuses State of Failing to Protect Farm Workers from Heat-Related Death and Illness

Landmark Lawsuit Accuses State of Failing to Protect Farm Workers from Heat-Related Death and Illness

LOS ANGELES, Calif. – With California’s 650,000 farm workers facing a daily risk of death and illness from toiling in stifling summer heat, the ACLU affiliates of Southern California and San Diego and Imperial Counties, and the law firm of Munger, Tolles & Olson LLP, filed a landmark lawsuit today against the state and its Occupational Safety and Health Standards Board (Cal/OSHA) for failing to live up to their constitutional and statutory duties to protect the safety of farm workers. (Click to see complaint)

The lawsuit charges that state officials have failed in virtually every possible way to create a system to protect these workers, who provide 90 percent of the labor for California’s multibillion-dollar agricultural industry – the nation’s largest — that produces everything from grapes and strawberries to lettuce and tomatoes. Perhaps most glaringly, Cal/OSHA has failed to establish common-sense regulations that would provide potentially life-saving water, shade and rest to workers who labor outdoors in temperatures that regularly top 100 degrees F.

In addition, the state requires that its existing — and deficient — heat safety regulation be enforced exclusively through Cal/OSHA, even though that agency has no practical ability to do the job. Cal/OSHA has so few inspectors that it simply cannot protect workers in an industry this large, routinely imposes paltry fines even for serious violations and deaths, fails to collect fines it does impose, and allows enforcement actions to be tied up in appeals processes that often delay penalties for years.

“Farm workers are literally dying because of the state’s broken system, which is designed in a way that ensures underenforcement of the law,” said Catherine Lhamon, assistant legal director for the ACLU of Southern California. “The state’s system is so full of loopholes that compliance is effectively optional, and employers flout the law with impunity.”

The state itself has identified such serious noncompliance from agricultural employers that this summer it twice declared emergencies. But even then the state took no regulatory or legislative action to protect farm workers.  “We are left with no choice but to ask the court to require that the state protect farm workers from serious heat-related illness and death, which is readily preventable with basic precautions,” said Brad Phillips, an attorney with Munger, Tolles.

The state enacted its current heat safety regulation in 2005. At least 11 farm workers have died from heat-related illness since then, and farm workers have been pleading with the state for safety improvements all that time. Last year the agency conducted only 750 inspections among approximately 35,000 farms statewide – and found that nearly 40 percent had violated mandatory heat safety regulations.
 
Among the workers to die from heat-related illness was Maria de Jesus Bautista, who complained of nausea, headache and cold sweats in July 2008 while picking grapes during extreme heat in Riverside County. She died two weeks later. Bautista’s daughter, Margarita, is also a farm worker and still works in the fields of Riverside County. Having seen what happened to her mother, she fears for her safety during hot weather, but works out of economic necessity.

Socorro Rivera works for the largest grape grower in the United States, Giumarra Vineyards Corporation, which has vineyards in Kern and Tulare counties. On hot days, the shade provided by Giumarra consists of a plastic tarp slung over three rows of vines. Workers do not take shelter under it because air doesn’t circulate under the tarp, and it’s hotter there than in direct sunlight, Rivera says. Giumarra’s training to prevent heat illness consists of a supervisor reading a list of heat illness symptoms for 10 minutes once a year.

But no meaningful enforcement action has been taken against Giumarra. That is only one example of a glaring problem: in addition to a scarcity of inspectors and inspections, even employers who are charged with violating existing regulations escape with little or no punishment. Penalties for violations that have resulted in heat-related deaths average less than $10,000, and have dropped to as low as $250. Meanwhile, hazardous conditions often continue uncorrected for years as the labor contractors typically targeted by the state fail to pay fines or to address violations.

In addition, the industry has no environmental “trigger” such as temperature, humidity or radiant heat exposure that would set in motion a series of mandatory protective measures. One provision of Cal/OSHA’s emergency proposals earlier this year was a requirement for employers to provide shade for workers when temperatures exceed 85 degrees F. But the proposals placed the burden for taking shade breaks on farm workers themselves. Many workers say they are pressured to keep up with competing crews, and they are fearful of being fired if they take voluntary breaks to cool down.

“If hundreds of thousands of white-collar employees had to work under dangerous and life-threatening conditions, the state would almost certainly take immediate action to protect their health and safety,” said David Blair-Loy, legal director for the ACLU of San Diego & Imperial Counties. “Low-income farm workers, who are overwhelmingly Latino, deserve no less.”
 
“The governor has said he would address this crisis through heat regulations,” added Arturo Rodriguez, president of the United Farm Workers. “Yet farm workers have continued to die, and the evidence points to neglect, not ignorance, as the cause of their deaths. Consequently, we have no moral or practical choice but legal action."

In contrast to California’s agricultural industry, the United States Army expressly recognizes the importance off heat stress control in providing a safe and efficient working environment. Steps taken by the Army to actively manage employee heat stress include: monitoring heat index levels and employing a “flag system” that regulates work/rest cycles; ensuring that water is consumed continuously throughout the day; and training soldiers and command officers to recognize and respond to symptoms of heat illness.

Statement of Catherine Lhamon
Assistant Legal Director, ACLU of Southern California

This morning we and the law firm Munger Tolles & Olson LLP filed suit on behalf of five California farm workers and the United Farm Workers union against the State of California and California’s Division of Occupational Safety and Health (Cal/OSHA) for their failure to protect farm workers from heat illness and death.  Every year, as predictably as the sun rises, an inescapable fact of agricultural life is that the people who pick our fruits and vegetables work long hours in extreme heat that routinely tops 100 degrees. But heat illness and death are, as the state has recognized, easily preventable with provision of water and shade and rest to cool the body down.  That easy prevention should be the basic right of all farm workers: the California Constitution and laws require the State and Cal/OSHA to provide comprehensive workplace safety systems. 

Farm workers are not safe, however.  As you will hear this morning, the men and women who bring food to our tables are continuing to risk their lives and suffer hospitalization this summer because their employers deny them the water and shade they so desperately need.  For an example from this week alone, Jose Rosario Valencia worked moving irrigation pipes in an onion field in Lancaster on July 17, 2009—a day that reached 108 degrees.  His employer, Gene Wheeler Farms, provided water at a distance many minutes away from his crew, and provided his crew no training at all in heat illness prevention.  By 9 am, Mr. Valencia felt nauseated and started seeing black spots.  His foreman told him to rest by his truck; Mr. Valencia had to ask to be taken to a doctor.  He was admitted to the hospital with severe dehydration and not released from the hospital for four days.  His doctor told him that if medical attention had been delayed much longer he could have died from his heat illness.  Mr. Valencia is not here today because he is recuperating at home, after just having been released from the hospital late Monday night.

Mr. Valencia is lucky to have returned home.  California’s farm workers are literally dying because our state has structured a system that ensures that workers will be dramatically unsafe.  The heat illness prevention regulation is rife with loopholes and does not even provide employers guidance about how close water or shade should be.  Worse: that deficient regulation requires exclusive enforcement through Cal/OSHA even though Cal/OSHA is so severely understaffed that it cannot do the job.  Cal/OSHA has 187 safety and health compliance inspectors for 17 million workers, 650,000 of whom are farm workers.  With these odds, employers flout the law because they know they can.

Last summer, when 17-year-old farm worker Maria Isabel Vasquez Jimenez died from heat in the fields, the Governor promised workers: “Every employer or labor contractor in every corner of the state of California will face the same scrutiny– obey the law or be shut down.”  And Cal/OSHA has increased its enforcement efforts this summer and has shut down 10 noncompliant employers.  But even that enforcement increase is starkly insufficient to the task given that some 35,000 farms operate in California.  All too many of the other 34,490 agricultural employers bank on continuing anonymity so they can mock California’s constitutional and statutory promise – and the Governor’s promise – to keep farm workers safe.  In addition, Cal/OSHA’s chief has stated that his team is “maxed out” and cannot maintain that level of enforcement. 

California’s farm workers need more than a maxed out team that tilts at the margins of the industry; they need the law they experience in the fields to match the promises in the law books so California farm workers can reasonably expect, every day when they go to work, that they will come home alive at the end of the day.  We very much hope that this lawsuit will finally prod the State to do what is necessary to satisfy its obligations to the men and women who risk extreme heat as a daily part of their work.