UFW Lawsuit Accuses Cal/OSHA of Failure to Enforce Regulations Protecting Farm Workers

UFW President Arturo Rodriguez flanked by lawsuit plaintiffs Margarita Alvarez Bautista and  Natividad Carrillo.

Thursday, October 18: a lawsuit in California’s state court was filed against the California Division of Occupational Safety and Health (Cal/OSHA) for its “systematic failure” to enforce the regulation that requires farmers to provide water, shade and rest to their employees in order to prevent heat illness or death.

The lawsuit, Bautista v. Cal/OSHA, was filed by Public Counsel and the law firm of Munger, Tolles & Olson LLP on behalf of individual farm workers, the United Farm Workers, and the UFW Foundation, whose campaign to make farm workers safer led to Governor Arnold Schwarzenegger’s signing the heat illness regulations in 2005. The lawsuit names Cal/OSHA and its director Ellen Widess as defendants.

Seven years after California enacted its first-in-the-nation rules intended to protect outdoor workers from heat-related illness and death, farm workers throughout California continue to become ill and die from heat exposure, while the State agency continues to face charges from the UFW that it fails to perform its statutory duties.

At least 28 farm workers have now died of potentially heat-related causes since the regulation was first approved in 2005. This year alone, Cal/OSHA is investigating heat as a factor in the deaths of at least four California farm workers.

California has more than 35,000 farms employing some 650,000 farm workers. Yet Cal/OSHA itself, in a press release this summer, estimated that employers fail to comply with the heat illness prevention regulation in 1 out of every 4 instances, leaving more than 156,000 farm workers on at least 8,400 farms at risk.

Today’s lawsuit follows a previous lawsuit in 2009 that first revealed widespread problems with enforcement. The new lawsuit includes evidence from 2011 and 2012, which shows Cal/OSHA’s failure persists today, rather than being an issue from years past. With the grape harvest now in full swing and another California heat wave forecast for this week, the threat to workers is real and immediate.

UFW President Arturo Rodriguez: “Farm workers in California work in the extreme heat and tough conditions to feed our nation. But farm workers should never have to risk death due to heat illness. The evidence shows that farm workers continue to die from heat illness due to employer neglect and that the state of California still fails to enforce the existing heat illness standards.”

Lawsuit plaintiff Margarita Alvarez Bautista, whose mother, 63 year old Maria de Jesus Bautista, died of heat-related illness two weeks after she collapsed in July 2008 while picking grapes in extreme heat in Riverside County, had this to say: “It has been four years since my mother passed away, and people are still dying. Not enough is being done to protect people working in the fields.”

This July, the UFW received a call from Margarita’s cousin, Martin Bautista. He told the UFW that his friend had died working in 90+ degree heat in the Coachella Valley. This case is one of the 4 cases being investigated this year. Margarita wants to make sure losses like her family’s don’t happen to any other family, so she is a plaintiff and vocal proponent of the lawsuit.

Natividad Carrillo is one of the workers joining in this lawsuit. Her brother, Ramiro Carrillo, died of heat stroke after picking nectarines in 112 degree weather in Fresno County. The UFW reported that they have evidence that Ramiro Carrillo’s employer did not provide any shade and did not seek any medical attention for him when he was dying. Said Ms. Carrillo: “My brother died because of heat. Right now I am picking olives in the fields and things are still bad. Temperatures rose to 108-111 degrees this summer and the water they gave us was dirty and undrinkable. There was no shade for us.”

“Farm workers who put food on our tables shouldn’t have to put their lives at risk, but that is the reality they face every day, because they can’t trust the agency charged with protecting their safety to do its job” said Public Counsel’s Director of Impact Litigation, Catherine Lhamon.

Bradley Phillips, a litigation partner at Munger, Tolles & Olson LLP, observed: “During both the Schwarzenegger and Brown administrations, the state has said that this a problem of the past, not of today. But both the evidence we have gathered through our earlier lawsuit and our clients’ experience shows that the state continues to systematically fail to protect farm workers by enforcing its heat regulation. What is long past is not the danger to farm workers, but the time for the state to demonstrate a real commitment to making those workers safe.”

The lawsuit accuses Cal/OSHA of a series of “systematic failures” to enforce the Heat Illness Prevention regulation as it is required to do under the California Labor Code. They include:

Failure to conduct on-site inspections for complaints;

Failure to evaluate the conditions alleged in a complaint when it does conduct inspections;

Failure to issue citations for serious, repeat, or willful violations of the Heat Illness Prevention regulation that it has found to exist;

Failure to investigate the causes of potentially heat-related injuries and fatalities and to evaluate the conditions involved in such incidents;

Failure to conduct re-inspections or penalize an employer’s failure to accomplish and certify abatement of violations of the Heat Illness Prevention regulation, effectively providing free passes to employers that choose not to comply with the law;

Failure to initiate investigations into serious heat complaints against agricultural employers within three days, which is especially critical in this highly mobile industry where work sites and workers may migrate miles each day;

Failure to impose and collect meaningful penalties for violation of the Heat Illness Prevention regulation.

The UFW alleges that Cal/OSHA has failed to institute policies and procedures adequate to ensure that it will take these actions, thereby in its practice has systematically failed to do so.  A representative for Cal OSHA was not immediately available for comment.

The Los Angeles Beat will continue to keep its readers abreast of updates/further developments in this on-going battle by the UFW to ensure safer work conditions for California’s farm workers.

Link to complaint: http://www.publiccounsel.org/tools/assets/files/Bautista-v-Cal-OSHA-Complaint-10-18-2012-with-exhibits.pdf