November 29, 2013
A court case currently at the appellate court level could set a dangerous legal precedent and severely change the relationship growers have with their pest control advisors and farm labor contractors.
Amy Wolfe, president and CEO of AgSafe, a non-profit organization dedicated to providing employers and employees with the resources to prevent illness and injury, recently told a gathering of PCA’s that the Ag industry needs to have regular conversations regarding issues surrounding farm labor contractors and worker safety.
Wolfe spoke at the California Association of Pest Control Advisors (CAPCA) on the importance of these frank discussions.
The importance of the issue can be seen in the declining number of laborers available for field work. It is also evident in a legal case under appeal in California. Wolfe fears the later could have far-reaching ramifications well beyond the Ag labor market.
There are currently about 1,200 unduplicated farm labor contractors (FLC) in California, Wolfe said. She uses the word “unduplicated” because some FLC’s have two licenses with expiration dates staggered six months apart because California “has so many issues in reissuing licenses,” she said.
Of the 1,200, Wolfe estimates that about 25 percent of them are operating “above-board” by employing PCAs and focusing hard on worker safety and the host of other issues regulators are keen to.
“These folks are doing the right thing,” she said. “Then you have the other 75 percent who don’t even realize that they need to be having these conversations.”
At the heart of Wolfe’s point is a court case that could forever change the relationship between the FLC and grower. Joint employer responsibility is a major facet of the discussion Wolfe says must begin now because of pending litigation.
That pending case is Arredondo v. Delano Farms. While it originally centered on alleged state and federal wage and hour violations, the case quickly became one of joint employer liability as the plaintiffs were successful in connecting Delano Farms with their FLC’s. Delano Farms grows 6,300 acres of grapes in California’s San Joaquin Valley.
According to Wolfe, attorneys for the plaintiffs argued that the farm labor contractors “were simply doing what the grower told them,” and therefore Delano Farms was legally liable for the wage and hour violations of the farm labor contractor.
Delano Farms has appealed the court’s decision related to the joint employer liability.
Wolfe’s point was not to go into the details of the court case, but to use it as a beacon to highlight how joint employer liability will forever change the legal landscape. Because of joint liability, growers and their PCA’s (or any other professional the grower employs full time or by contract) will need to discuss with farm labor contractors the various hazards of the job, and document those discussions and the training sessions they conduct.
According to Wolfe, documenting training sessions and having written safety rules should be part of the every-day routine in agriculture. Since 1991 California has required businesses to have a written safety program, yet when state regulators inspect farming operations it remains one of the top-three most cited violations in agriculture.
While growers who use farm labor contractors try to maintain an arm’s-length relationship with them, Wolfe argues that the risks are too dangerous. Given the litigious nature of farm labor unions and the regulatory reach of the state agencies involved, Wolfe says growers and their PCA’s must work closely with farm labor contractors to ensure their employees understand the hazards involved with their jobs.
“Look at the political environment,” Wolfe said. “In the last three legislative sessions there have been bills written related to farm labor contractors.”
For instance, PCA’s need to ensure that laborers are fully aware of pesticide label rules, including re-entry periods. Those training sessions need to be documented, she said. Communicating with neighboring farms and their contract workers will also be necessary as it relates to spraying operations and other potentially hazardous conditions.
Cal/OSHA under the gun
Wolfe also explained how the California Division of Occupational Safety and Health, better known as Cal/OSHA, is under scrutiny by its federal counterpart to step up inspections of farming operations or face a federal take-over of the state program.
She cited a Dec. 1 deadline for workers with any involvement with on-the-job chemicals to be trained in new labeling formats. While Cal/OSHA has been relatively quiet on the subject, Wolfe said the federal government continues to watch the state’s involvement in such issues.
A recent Rand study suggested that California does not do enough planned inspections, and is therefore underreporting the true reality of worker injuries in California.
According to Wolfe, the California Employment Development Department estimates that between 600,000 and 750,000 people over the course of a calendar year are employed as farm laborers. Wolfe believes that estimate may be closer to 500,000.
The changing political climate related to undocumented workers and the rules on employers has ironically led to a growth in the number of farm labor contractors in California, Wolfe said.
“Applications for farm labor contract licenses have increased over 100 percent in the past year,” she said. “We cannot pretend that the contractor is not important in the work that we are doing.”
An ever-growing shortage of farm laborers when and where needed has also caused this shift as growers have moved away from hiring their own workforce to simply contracting with a labor contractor for the number of workers he needs to harvest his crop,
“At one time 40-55 percent of farmworkers worked for farm labor contractors,” Wolfe said. The percentage of available workers employed by FLC’s could be upwards of 65 percent now, she said.
While the Arredondo v. Delano Farms case is still pending in the appellate court, Wolfe is pessimistic that it will be judged in Delano Farms’ favor. That is one reason why she is pushing the Ag industry now to consider the far-reaching ramifications the legal case could have.
“With case law like this it will not be a stretch for them to look at you and say: ‘you’re the expert; you know the product best; you are the one trained to know how to safely store and use this product’,” she said. “All it will take is a 16-year-old girl dying, with a UFW funeral and a governor in attendance for the whole thing to blow up,” she said.
Current regulatory pressure by the U.S. Department of Labor, CalOSHA and California’s Department of Pesticide Regulation are also forcing the issue as “collective responsibility is becoming the new mantra in these agencies,” Wolfe said.
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