SACRAMENTO BEE

December 31, 2008

Cal-OSHA to review handling of heat cases

By Susan Ferriss

Heatstroke caused seven confirmed deaths and more than 60 worker injuries this year, despite tougher regulations enacted in 2006 with Gov. Arnold Schwarzenegger's strong backing.

Many of the injured required emergency evacuation and hospitalization. More than half of the injured were agricultural laborers, as were four of the seven deaths.

Cal-OSHA, the state's job-safety agency, in January and February will publicly review regulations, enforcement and an appeals process that has slashed heat-related injury penalties imposed on some employers – including those whose workers died – down to as low as a few hundred dollars in one extreme reduction.

Len Welsh, chief of Cal-OSHA, said the state is collecting only about a third of the fines inspectors initially propose, an amount he acknowledges weakens the regulations.

He said some penalty reductions are granted automatically before an appeal begins because a business is small, or shows "good faith" and quickly corrects a problem.

However, Welsh added, when repeat or very serious violations are found or a fatality or injury has occurred, "in some cases, yes, the reduction of penalties to a certain amount sends a bad message."

Anne Katten, a safety specialist with the California Rural Legal Assistance Foundation in Sacramento, concurs. "You need steep fines to prevent deaths. Employers need to know there are consequences," she said.

This year, inspectors issued more than $3.9 million in heat-safety fines, a record and almost double the nearly $2 million issued in 2007. That year, there were five heat-related deaths, three of them farmworkers.

A death this year of a 17-year-old Mexican girl resulted in the biggest penalty ever issued to one employer for violations of heat-safety regulations – a total of $262,000. Merced Farm Labor, an Atwater labor contractor, was cited for violating regulations after teenager Maria Vasquez Jimenez, new on the job, collapsed in a vineyard and later died.

The company is appealing the fines. Schwarzenegger attended the girl's funeral and has since issued multiple statements declaring that violations of heat-safety rules will be punished.

Merced Farm Labor was fined $2,250 in 2006 and never paid or appealed the fines, records show.

Yet owner Maria de los Angeles Colunga's contractor license was later renewed, at which time, Welsh said, she had to disclose only whether she faced unsettled labor law violations. Heat-safety regulations are technically not laws.

"That was our mistake," Welsh said, adding that the loophole has since been fixed.

Cal-OSHA records this year in other fatal cases show that:

• A Kern County oil company, Ensign U.S. Drilling, faces $23,400 in fines after a 27-year-old worker died during extreme heat.

• Sacramento construction firm Mascon Inc. was issued $18,755 in penalties after a laborer, 55, died.

• Sun Valley Packing of Fresno County faces $34,870 in fines after a fruit picker, 46, died.

One of the biggest fines proposed this year in connection with heat-safety violations didn't involve a fatality. Wayne Smith, a Shafter grape company, was inspected during a Cal-OSHA sweep and faces $81,250 in penalties, some for "willful" violations.

Employers have the right to contest fines based on Cal-OSHA inspectors' investigations and surprise checks. Appeals can go first to administrative law judges and proceed to the Cal-OSHA Board of Appeals.

Employers contested more than $1 million of the original fines issued in 2007, and the appeals process slashed that by two-thirds, to just under $336,000. By year's end, only $593,000 of all heat-safety penalties issued were paid.

For example, a 36-year-old worker for San Joaquin Valley farm company George Perry & Sons died in 2006 after harvesting watermelons for seven hours in Tracy. Inspectors proposed citations carrying fines totaling $7,310 for "serious" violations. Cal-OSHA records of heat-related fines show that in 2007 the company's fine was reduced in a settlement to $3,150.

In another instance in 2007, an employee of YNT Harvesting died after picking peaches in Kettleman City. The worker, 53, was left in a packing shed after falling ill at 4 p.m. The company was fined $25,310, which was reduced to $7,310.

Such reductions in penalties for violations in cases involving fatalities were an established pattern before the 2006 changes in regulations.

• In 2004, an Isleton pear harvester, 30, died after suffering heatstroke. He was told to sit under a tree and did not receive prompt medical attention, according to an investigation. Penalties of $22,500 against labor contractor Manuel Alonso Mendoza were reduced to $9,000.

• In 2005, a laborer picking bell peppers, working at a pace set by a motorized container, died after falling ill during 104-degree heat. David Castillo Farm Labor, based in Bakersfield, was fined $43,875. Investigators originally cited a failure to have a safety plan, emergency plan, or training for workers on the importance of water consumption. Penalties were settled at $23,625.

• Also in 2005, an employee, 38, of Zepeda Farm Labor Service died after harvesting lettuce seeds from 7 a.m. to 3 p.m. in 100-degree heat. Inspectors cited the company, noting failure to provide training to prevent heat illness or to provide sufficient clean water. Penalties totaling $13,500 were later cut to $250 – one of the lowest fines on record for a case involving a death.

Welsh said some fines have been reduced during appeals because witnesses – in many cases immigrant workers – haven't been willing or able to go to a hearing, or because of challenges to inspectors' findings.

Zepeda Labor Service's fine in the 2005 fatality case was reduced to $250 partly because of contradictory witness reports about the water supply and insufficient proof that workers were not trained, Welsh said.

The Board of Appeals is a three-person board. One of the seats reserved for a person from a labor background has been vacant for years.

The board declined to comment on the penalty process.

At a 1 p.m. public meeting on Feb. 5 at its Sacramento headquarters, the board is to examine how it operates. The January meeting date with Cal-OSHA about regulations and enforcement has not yet been set.