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	Newsletter

Farm Worker Safety Act

AB 2346 will require that water shall be provided at a distance no more than 10 feet from any agricultural employee. 10 feet?

Jun 18, 2012

VOLUME 4 ISSUE 38

JUNE 18 2012

:: IN THIS ISSUE

» HeatBill
» SueBill

Board of Directors

Denis Prosperi
Chester Andrew
Bob Smittcamp
Russ Waymire
John "Dusty" Giacone
Joe Marchini
Mark Watte
Kole Upton
Piedad Ayala
Tom Barcellos
Jim Walls

Farm Worker Safety Act

There were no farm worker heat-related deaths in 2009, none again in 2010 and one (1) in 2011. Yet, the California legislature has found this to be a problem worth solving. The first thing we notice about the Farm Worker Safety Act is that it's authored by Marina Del Rey Assemblywoman Betsy Butler. We don't know anything about her, but it does seem odd that someone from Marina Del Rey would be the author of this bill. It's not like it's a real farming area from what we've seen. Does she have any idea what this issue is all about? We can almost hear her response without asking: "If there's just one farm worker death, it's too many. And, we'd agree. But, does it really require more legislation?

According to this article there are over 400 heat related deaths in the U.S. every year. So, one (1) in all of California agriculture over the past three years doesn't appear to be where the problem lies. The article points out that most heat-related deaths are in athletic/sports activity and that children are more susceptible than are adults. Nothing in this article about heat related deaths in the U.S. mentions farm workers. Why not roofers? Why not road repair? Why not city tree trimmers? Why not letter carriers? How about cooks? Sorry we brought it up. They'll probably be next.

You can read the articles below and see for yourself what this is all about, but here are just a couple of things: 1) OSHA currently requires employers to provide fresh, pure and suitable drinking water as close to the employee as practicable given the work restrictions. AB 2346 will require that water shall be provided at a distance no more than 10 feet from any agricultural employee. 10 feet? Have you ever seen a farm? How long the rows are? Do we really think we need to provide water every 10 feet? How about every 10 feet on the summer league basketball court? See what we mean. 2) This bill would also impose specified civil penalties, and create a private right of action, for violations of these requirements. These penalties can range from $500.00 to $200,000.00. Can anyone see any ambulance chasers nearby? Imagine getting fined and sued for not having water every 10 feet. Do any of us think we can make it to the mailbox and back?

New bill strengthens heat-illness protection for farmworkers

By Robert Rodriguez - The Fresno Bee

Modified Fri, Jun 15, 2012

California farmers could face stiffer penalties and lawsuits from workers under a proposed Assembly bill seeking to strengthen the state's heat illness prevention regulations.

Supporters of the bill, authored by Betsy Butler, D-Marina Del Rey, say the state's current protections are not strong enough to adequately protect farmworkers from scorching temperatures.

Assembly Bill 2346, known as the Farm Worker Safety Act, passed the Assembly on May 31 on a 41-28 vote and now moves to the Senate. The bill aims to increase penalties against employers, create stronger requirements for water and shade and allow workers to sue their employer for not following the law.

The bill also would make growers responsible for violations committed by farm labor contractors they hire.

Although California was the first state to protect outdoor workers by requiring employers to provide shade, water and training, advocates say too many employers are ignoring the law.

"The state government has not been able to effectively protect farmworkers from heat illness and AB 2346 is another tool for farmworkers to protect themselves," said Maria Machuca, spokeswoman for the United Farm Workers of America. "The ultimate goal here is to make sure that no farmworker dies in the fields because of the lack of access to water ... or shade."

From 2005 to 2011, there were 13 heat-related fatalities in California agriculture, according to the California Department of Industrial Relations.

Just recently, a 56-year-old farmworker in Coalinga died in a suspected heat-related case. The worker, who was pruning in a pomegranate orchard, collapsed in heat that exceeded 100 degrees.

Advocates say the deaths could have been prevented if employers followed the rules.

"Heat illness can happen in just minutes, and by the time inspectors come out to a farm it's too late," Machuca said. "The workers have likely moved on to another field, another crop, and every day the problem isn't fixed people's risk of dying or becoming seriously ill just goes up."

But farmers and agriculture industry leaders say that while one heat-related death is too many, the new bill is unnecessary and focused too narrowly -- AB 2346 targets only agriculture.

"We understand and have accepted the state's heat-illness regulations and are doing everything we can to implement them," said Joe Del Bosque, a westside farmer and farm labor contractor. "But this is extreme and unfair."

Del Bosque, who also is a member of AgSafe, a nonprofit farm safety organization, said the agriculture industry, with the help of the state, has held numerous training seminars to educate farmers and contractors.

And, he said, the number of heat-related fatalities in farming has been dropping. No deaths were reported in 2009 and 2010 and only one last year.

Lupe Sandoval, managing director of the Sacramento-based California Farm Labor Contractor Association, said some of the proposed requirements are absurd.

The bill would require employers to provide free of charge to workers a canteen or cup of at least 8 ounces for their own use. The water containers would have to be replaced or cleaned after each work shift. The water temperature must also be 70 degrees or lower at all times.

The current law makes no requirement for a drinking container or specific water temperature. It says, in general, that cool, drinkable water must be provided to workers at all times.

"The current provisions to replenish water supplies and keep adequate amounts of cool water seems to be working," Sandoval said. "The idea of making a farmworker haul around a personal canteen or drinking cup, and then making sure it gets cleaned and sanitized at the end of each workday will create as much hardship and discomfort for the workers as for the employers."

The bill also calls for enough shade to accommodate all employees working on the shift at one time. The existing law says that shade must only be provided for 25% of the workers in one shift at one time.

Also written into the bill is a provision that allows an employee to sue an employer for damages caused by failing to comply with the regulations.

Advocates say it is important to give employees the ability to help protect themselves from unscrupulous employers.

"The Farm Worker Safety Act would achieve something farmworkers have desperately needed for decades," UFW spokeswoman Machuca said. "It would ... help enforce the law."

Farmer Del Bosque fears it will lead to frivolous lawsuits: "The fields will become a hunting ground for lawyers."

AB 2346 Turns Up the Heat on Employers

The Saqui Law Group

The legislative analysis of The Farm Worker Safety Act of 2012, otherwise known as the Heat and Illness Bill (AB 2346 can be found HERE), was published on April 17, 2012 (the legislative analysis can be found HERE) and the bill was heard by the Assembly Labor and Employment Committee on April 18, 2012. As written, The Farm Worker Safety Act of 2012 will impose similar duties on employers as those required by Cal OSHA. However, this bill goes much further by imposing greater regulations and penalties on employers in several areas including, but not limited to: shade, water, civil penalties, heat-illness related deaths, adverse actions, and additional posting requirements.

Shade: Currently, OSHA requires that shade be provided as close as practicable, which generally requires the shade be within a two and a half minute walk (but no greater than a quarter of a mile or a five minute walk) from any employee. AB 2346 will require an employer to provide a shaded area at a distance no greater than 200 feet from any agricultural employee.

Drinking Water: OSHA currently requires employers to provide fresh, pure and suitable drinking water as close to the employee as practicable given the work restrictions. AB 2346 will require that water shall be provided at a distance no more than 10 feet from any agricultural employee.

Civil Penalties: This bill would also impose specified civil penalties, and create a private right of action, for violations of these requirements. Any enforcement action taken can be brought against all agricultural entities involved in the farming operation, including the farm operator. These penalties can range from $500.00 to $200,000.00, with half of the recovery going directly to the Department of Occupational Safety and Health.

Heat-Related: Death Any heat-related death of an agricultural employee, where the employer is found to not be in compliance with the required safeguards, will be a crime of voluntary manslaughter. If the employer is found guilty, the employer shall pay restitution to the immediate surviving family of the deceased employee between $1,000,000.00 and $1,500,000.00.

Posting Requirements: Currently, OSHA requires employers to put in writing all procedures on heat and illness prevention, and to have them available to provide to OSHA when asked. AB 2346 takes this a step further by requiring employers to post a sign with the following in a manner readily visible and legible at any worksite every day: the identity of the farm operator, the identity of the employer, the date, the number of employees of that employer in each crew at that worksite on that date, and the location at which the written procedures for complying with heat illness requirements are maintained. Civil penalties for violating the posting requirements shall be $500.00 per day, up to $10,000.00

Discipline / Discharge: In addition, this bill will prohibit employers from penalizing and/or discharging an employee who takes specified actions, including drinking water, taking a break, or other actions reasonably calculated to prevent heat illness.

Counsel to Management: AB 2346 is still in its procedural stages, and is currently working its way through the legislature. It is important to maintain compliance with the current OSHA standards, and to closely monitor this over-reaching bill so that you are prepared to adapt to the changes discussed above should AB 2346 pass. Stay tuned for more updates on AB 2346 as it navigates through the legislature. This bill is bad for employers, implicates joint employer relationships between Farm Labor Contractors and growers. Employers should contact their legislators regarding the impractical requirements of the bill.

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