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.