TIME MAGAZINE

August 10, 2009

Fatal Sunshine: The Plight of California's Farm Workers

By KEVIN O'LEARY

The bountiful harvest of California strawberries, melons, grapes, peaches and nectarines overflows the nation's summer tables. But that luscious crop mostly emerges thanks to farm workers who labor in flat fields under a scorching sun - and has a price higher than the grocery-store bill. Every year many farm workers become sick, and some die. Typical of the fatalities was Maria Isabel Vasquez Jimenez, who was just 17. In May 2008, she died after picking grapes in Merced County for nine hours in 95-degree heat. Governor Arnold Schwarzenegger attended her funeral and promised to do more to protect workers.

A lawsuit is now underway to ensure just that. Last week, the ACLU and the blue-chip law firm Munger, Tolles & Olson sued California's occupational-health and safety agency on behalf of the United Farm Workers (UFW) and five farm workers who had become sick or are relatives of workers who have died from heatstroke. According to the lawsuit "large numbers of agricultural employers fail utterly to provide basic access to water and shade for their employees" and, as a result, hundreds suffer heat-related illnesses and hospitalizations - or worse - each year

The complaint filed in Los Angeles Superior Court provides graphic details. Audon Felix Garcia, 41, became sick July 2008 after loading grape boxes into a truck in 112-degree heat from morning to early afternoon in Kern County. He had 15 years of experience in the fields and, according to the complaint, his "core body temperature was 108 degrees Fahrenheit at the time of his death." Maria de Jesus Bautista had worked in the fields all her life and had never been sick from the heat, but in July 2008 while picking grapes in Riverside County in 110 degrees she complained to her sister of a "headache, nausea and cold sweats." According to the lawsuit, "She continued to work the rest of the day because her employer did not provide any shade and she felt pressured to keep pace with her co-workers. Over the next two weeks, her headache persisted, she became disoriented and was unable to recognize family members, and she was hospitalized on three separate occasions." She died on Aug. 2 last year.

In 2005, California implemented the nation's first heat-illness standard, requiring farms and contractors to provide water and shade to the state's 650,000 farm workers who help supply 44% of the nation's fruits and vegetables. The lawsuit claims the enforcement agency, the State's Division of Occupational Health and Safety (Cal-OSHA) is woefully understaffed (only 198 inspectors for 17 million state workers including the 650,000 farm workers) and that since California enacted its Heat Illness Prevention regulation, "the number of farm-worker heat-related deaths has increased." Catherine Lhamon, assistant legal director for the ACLU of Southern California, said, "The state's system is so full of loopholes that compliance is effectively optional, and employers flout the law with impunity." According to the lawsuit, the current regulation fails to adopt the safeguards that have "long been put into practice by employers ranging from firefighters to the United States' military services."

The recently signed state budget authorized $1.5 million to expand outreach efforts to educate workers and employers about heat illness in all outdoor industries. Unlike many state agencies, Cal-OSHA did not see its budget cut.

Cal-OSHA spokesman Dean Fryer said the state is doing a better job educating growers and that currently 16% of employers visited by inspectors violate the rules as compared to 67% three years ago. Yet the UFW and its attorneys contend that last year the agency conducted only 750 inspections among the approximately 35,000 farms statewide - and found "that nearly 40% had violated mandatory heat-safety regulations." According to the lawsuit, six farm workers died from heat-related illness in 2008. State officials count three. There have been no deaths in 2009, but the union says there have been numerous hospitalizations.

Lawyers for the farm workers say that the big growers, who own the land and who most profit by the workers' labors, have little incentive to ensure adequate water and shade because farm-labor contractors employ the farm workers. In addition, says the lawsuit, employers see little reason to comply with the regulation because "those few violators who are occasionally identified generally escape with little or no punishment." Attorney Bradley Phillips of Munger, Tolles & Olson says the way to improve worker safety is to "create the maximum economic incentive" for the large growers. Under the current system, labor contractors are potentially liable, but they are "not well capitalized and often have no fixed assets." What is necessary, says Phillips, is to impose a fine or some sort of penalty on the grower.

Farm workers say a key problem with the current regulation is that workers have no right to a rest break until they recognize they are experiencing symptoms - and this is often too late to prevent illness. "The evidence points to neglect not ignorance as the cause of farm worker deaths," said UFW President Arturo Rodriguez. He said the union had been in negotiations with state officials to improve the current regulation but with temperatures in the San Joaquin Valley now averaging 100 degrees they cannot afford to wait. "This lawsuit ensures that the governor knows we mean business," Rodriguez said.

Growers say more is being done to protect workers than in past years. Manuel Cunha Jr., president of the NISEI Farmers League, cites the heat-training received by 409 contractors who employee 209,000 of the 380,000 seasonal workforce and the new Igloo water containers that spell out heat-safety precautions in use on farms across the state. "The growers have responded in the most positive and honest way," says Cunha. "We are getting the message to workers that they need to drink cool water, to rest in the shade and to watch for heat-illness symptoms in their co-workers."

Reacting to the lawsuit, Cal-OSHA filed a proposal with the Occupational Safety and Health Standards Board to amend the regulation to require that shade be present at all times. Agency official John C. Duncan said the proposed revision "will make it clear that employees have the right to take a rest in the shade whenever they feel the need to do so to prevent overheating." In the past two months, however, the board has twice failed to adopt emergency proposals to strengthen the heat regulation. After the second rejection, Schwarzenegger issued a statement saying that the board "has failed in their mission to ensure the health and safety of California's outdoor workers."