A lawsuit was filed here Thursday accusing California's state government of failing to protect its 650,000 farm workers from heat-related death and illness.
The American Civil Liberties Union (ACLU) affiliates of Southern California and San Diego and Imperial counties, the law firm of Munger, Tolles & Olson LLP announced that the landmark lawsuit was filed against the State of California and its Occupational Safety and Health Standards Board (Cal/OSHA) for failing to live up to their constitutional and statutory duties to protect the safety of farm workers.
"Farm workers are literally dying because of the state's broken system, which is designed in a way that ensures under-enforcement 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," he added.
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, ACLU charged.
"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.
California 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, according to ACLU.
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, according to ACLU.
ACLU charged that California is more committed to wildlife protection than to people, especially farm workers.
ACLU cited some heat-related death cases in the lawsuit.
Maria de Jesus Bautista complained of nausea, headache and cold sweats in July 2008 while picking grapes during extreme heat in Riverside County in Southern California. 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, the lawsuit said.
Penalties for violations that have resulted in heat-related deaths average less than 10,000 dollars, and have dropped to as low as 250 dollars, according to the lawsuit.
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, the lawsuit said.
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, according to the lawsuit.
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 Fahrenheit. 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, according to the lawsuit.
"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," he added.
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 Fahrenheit.
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, according to the lawsuit.