Cal-OSHA sued for alleged inability to protect farm laborers

By Susan Ferriss

The American Civil Liberties Union and the United Farm Workers Union filed a lawsuit this morning against Cal-OSHA, accusing it of not being capable of protecting the state's 650,000 farm laborers from heat injury and death.

The suit filed in Los Angeles Superior Court credits occupational safety officials with stepping up enforcement in the wake of fatalities last year.

But it says employers remain out of compliance with regulations. It cites as evidence six farmworker deaths last year -- three more than Cal-OSHA recognizes -- injuries of farmworkers this year and widespread violations of laws that Cal-OSHA inspectors have found in recent months.

State officials, the lawyers said in a press release, "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," lawyers say, "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."

Dean Fryer, Cal-OSHA spokesman, said he couldn't comment on the specific allegations in the lawsuit because the agency had not yet reviewed it.

But he said, "We've stepped up our enforcement much more than in the past, and we've done a tremendous amount of educational outreach."

"There are still problems out there," he said, "but with all this outreach we're doing, we're beginning to see results. The culture of the workplace is changing."

Catherine Lhamon, assistant legal director at the ACLU in Southern California, said Cal-OSHA suffers from an insufficient number of inspectors, only 187, for more than 1 million work sites, among them 35,000 farms.

She also said that the agency's enforcement action lacks teeth because the Cal-OSHA Appeals Board often dramatically reduces fines inspectors issue for heat-illness prevention regulations.

The suit outlines a number of cases of employers whose fines were knocked down, even after fatalities, and cases of farm employers allowed to keep operating despite violations observed and failure to pay penalties.

The suit also complains that the state regulations -- which were considered groundbreaking when adopted in 2005 -- are not strong enough to protect workers because they rely on farmworkers to request breaks rather than employers to use means similiar to those used by the U.S. military to order workers to take breaks.

"There's nothing to scare the bejesus out of these employers to get them to treat farmworkers like human beings." said UFW president Arturo Rodriguez. "There are more fish and game wardens than there are inspectors out in the fields."

Rodriguez was part of talks in 2005 with Gov. Arnold Schwarzenegger, who approved of new regulations as a means to prevent deaths.