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January 2000, Volume 6, Number 1

California: Pesticides, Transportation, Wages

California produced about 44 percent
of the FVH commodities in 1997--fruits, nuts and berries, vegetables and melons,
and horticultural specialties such as nursery and greenhouse crops, Christmas
trees, mushrooms and sod—and accounted for about 25 percent of farmers expenditures on hired farm labor. An average 400,000 workers were employed on
the 25,000 California farms that hired workers. Most of those employed on
California farms are seasonal, meaning that they work for less than six months
on one farm-- a total of about 800,000 individuals do farm work for wages
sometime during a typical year.

California has enacted laws to
regulate the farm labor market, such as the Agricultural Labor Relations Act to
regulate labor-management relations and laws requiring that practically all farm
employers pay unemployment insurance taxes on farm wages—only workers
legally authorized to be employed in the US can collect UI benefits. California
also provides state-funded services to migrant and seasonal farm workers,
including housing for migrant farm worker families.

The year 1999 was marked by revisions
to farm worker transportation laws, a pesticide incident that may lead to new
regulations and procedures, and a curious difference in the treatment of workers
seeking UI and disability benefits.

Transportation/Safety. Many
farm workers are transported from their point of entry into the US—often
Arizona—to the US farms on which they work in vans. In many cases, seats
are removed in order to get more migrants in the van and the result is tragedy
in the event of an accident. A van taking 17 unauthorized farm workers from
Chiapas and Oaxaca to Kentucky crashed in New Mexico in December 1999, killing
13. The driver was killed; the survivors said they did know where they were
being taken, making it hard to determine if an employer had requested the

On September 29, 1999, Governor Gray
Davis signed a package of bills into law designed to improve farm worker safety;
the bills were prompted by the deaths of 15 farm workers on August 9, 1999 when
their van crashed into a tomato truck. The new farm worker transportation
safety laws require, for example, that vans used to transport farm workers for a
fee be equipped with seat belts by May 2000 and to display an inspection sticker
issued by the California Highway Patrol that certifies the vehicle is safe.

The California Highway Patrol
received $1.8 million in additional funds to hire 10 officers to focus on farm
worker safety and established a toll-free number—800-TELL-CHP-- to report
the illegal operation of agricultural labor vehicles. Assemblyman Dean Florez
promised to introduce legislation that would end the current practice of
allowing farm workers to be transported legally in the back of pickups with
camper shells.

Both federal and state agencies
enforce farm worker transportation rules. In 1998, DOL fined 145 farm employers
for violating farmworker transportation rules.

The Fresno Bee noted on November 7,
1999 that transporting workers is a responsibility that has bounced from growers
to farm-labor contractors to raiteros-- raiteros are van operators who charge
workers $4 to $6 daily for rides to work. Raitero van "public transit" in
agricultural areas is far more expensive than public transit in most cities.

Under current regulations, a van can
carry more than nine farm workers if it is inspected by the CHP for safety and
is insured. However, if the workers are charged a fee, the driver must register
as a farm-labor contractor with both the state and federal
governments—only two California FLCs have done so.

The Fresno Bee profiled a Madera
raitero who charged workers $5 daily for rides for workers employed by
farm-labor contractor Adam Beas. Beas emphasized that he is not responsible for
the vans—workers make arrangements with raiteros privately. Beas hires a
peak 3,000 workers, many of whom come to work in one of nearly 100 privately
owned vans. The workers profiled earned $1 a box for picking figs into canvas
shoulder bags.

As growers abolished on-farm labor
camps, most also got rid of transportation from the farm worker's home to the
field. Some growers, including Tanimura & Antle in Salinas, operate 36
buses, each capable of seating 50 workers. Workers drive to a central location
to get rides in T & A buses to the fields.

Most farm worker safety regulations
are enforced by California's Division of Occupational Safety and Health
(Cal-OSHA). According to a December 19, 1999 article in the Sacramento Bee,
Cal-OSHA reduces initial fines in 70 percent of the cases in which the employer
contests them. In 164 cases, inspectors proposed jumbo fines ($20,000 or more)
totaling $10.7 million between 1991 and early 1998—these fines were
reduced to $2.8 million; almost all fines of $20,000 or more are contested.

Critics say that Cal-OSHA is
understaffed; employers say that Cal-OSHA inspectors are too aggressive and
initially assess unrealistically high fines for safety violations. Cal-OSHA
fines are often reduced because, to obtain the highest fines, Cal-OSHA
inspectors must prove that the company willfully created or allowed unsafe
working conditions to persist, which is hard to prove.

Cal-OSHA is to provide incentives for
employers to create safe work places; county district attorneys are empowered to
prosecute employers in egregious cases. Once Cal-OSHA inspectors propose fines
for safety violations, employers can have them reduced by "credits" that reflect
the gravity of the violation, the extent of worker exposure, the likelihood of
injury, the size of the employer, the company's compliance history and "good
faith" in dealing with state inspectors.

Cal-OSHA requires growers to have
drivers on tractors, even slow-moving tractors going one to two miles an hour
that pull trailers into which workers put harvested produce. Some growers want
CAL-OSHA to lift the ban on driverless tractors—they argue that the
tractors move very slowly and that kill switches to stop the tractor can be
mounted in easy reach of workers on the ground. CAL-OSHA inspectors joined
farm-worker advocates in opposing driverless tractors.

The US Supreme Court ruled in a 1990
case, Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638, that farm workers injured
on the job could obtain workers compensation benefits and sue their farm
employers under certain circumstances. Testifying in support of legislation to
reverse the Adams Fruit decision of September 15, 1993, Doug Mosbar of the
California Farm Bureau asserted that "the agricultural workplace is one of the
most regulated in this country, and one in which good faith efforts to comply
are often meaningless. Agricultural labor laws are strictly construed and
enforced, and technical violations all too often offer the means for
over-zealous "farmworker advocates" to literally bankrupt a grower and eliminate
the jobs of the farm workers being "protected."

Pesticides. On November 13,
1999, mist from the weed-killing pesticide Sectagon 42 (metam sodium) blew into
Earlimart, a town of 6,000 in Tulare county, forcing 150 people to evacuate and
sending 29 to hospitals. The chemical was being applied by Wilbur-Ellis Co., a
San Francisco-based firm with over 3,000 employees that specializes in applying
agricultural chemicals.

The Sectagon 42 was mixed with water
and sprayed onto the ground through sprinklers. A water seal was then applied,
and the water reacts with the Sectagon 42 to push it into the ground, where a
gas formed that goes back up through the soil to kill nematodes, fungus and weed
seeds. Not enough water was applied, and some of the gas escaped and poisoned
residents living near the field. The penalty for misapplication of chemicals is
$1,000 to $10,000. Some farmers consider metam sodium a substitute for methyl
bromide, which is due to be phased out by 2005.

A committee of affected residents
presented Tulare county supervisors with over 180 health complaints, including
charges that 30 women and children were required to remove their clothes and be
"decontaminated" before being taken by ambulance to a hospital—they were
charged for the service. In response, Tulare county changed some of the rules
that control the application of Sectagon 42, including extending the buffer
around residences from 500 feet to one-half mile. Legislation was introduced in
Sacramento to have emergency response crews purchase tents and portable showers
to deal with victims of future pesticide emergencies.

The California Department of
Pesticide Regulation in January 2000 issued proposed rules designed to protect
residents and farm workers from the pesticide methyl bromide. Like metam
sodium, methyl bromide is a gas injected into the soil before planting to
eliminate nematodes, weeds and pathogens that can harm strawberries and orchard
crops, such as almonds and walnuts. About 17 million pounds of methyl bromide
were applied in 1999.

Since 1992, the Department of
Pesticide Regulation has issued recommendations on safety and buffer zones
around fields where methyl bromide is being applied. However, agricultural
commissioners in each county can interpret Department of Pesticide Regulation
recommendations based on local climates, crops and other variables when they
issue pesticide application permits. The January 2000 regulations aim to ensure
uniformity in the agricultural commissioner behavior. Methyl bromide is
scheduled to be phased out in 2005 because it is believed to destroy the
protective ozone layer.

In many cases, Congressional
representatives request and obtain exemptions from the Environmental Protection
Agency so that pesticides that would otherwise be banned can be used. An
average of 573 emergency exemptions were granted annually in the late 1990s, up
from an average of 300 in the early 1990s. For example, the $350-million
California walnut industry received an exemption to use the chemical Manex to
control blight. To approve an emergency exemption, EPA must conclude that the
chemical poses "no unreasonable adverse effects" and that there is a "reasonable
certainty of no harm to human health and the environment." Section 18 of the
Federal Insecticide, Fungicide and Rodenticide Act allows chemicals to be
applied for a limited period without all the customary scientific studies
justifying their safety.

The San Joaquin Valley has been
designated one of the nation's dirtiest air basins, joining Los Angeles, because
of excessive ozone, especially in the summer.

UI/DI. The Personal
Responsibility and Work Opportunity Reconciliation Act of 1996 strengthened bars
to government benefits for unauthorized aliens. States that were providing
"public benefits" to unauthorized aliens with state funds may continue to do so,
but only if they enact a statute explicitly reaffirming their desire to do so
after August 22, 1996.

Before 1996, applicants for
Unemployment Insurance had to verify their right to work, but applicants for
State Disability Insurance did not—SDI provides partial wage replacement
to employees who are unable to work because of pregnancy or non-industrial
illness or injury; it is financed by an employee-paid tax. Ex-Governor Wilson
in 1996 issued an executive order requiring state agencies to begin regulatory
action to ensure that applicants for "public benefits" are legally authorized to
be in the US, and EDD began to establish, but never implemented, an SDI
screening process that would have cost $3.2 million a year.

A bill in the California Legislature,
SB996, would formalize the current practice of not verifying the legal status of
applicants for SDI benefits, that is, of making all workers eligible regardless
of their legal status.

California reports weeks of UI
benefits paid each year in EDD Report 96A. In 1998, about 2.6 million weeks of
UI benefits were paid to workers laid off from agricultural employers: 1.3
million weeks to workers laid off by crop farms and 1.3 million weeks to workers
laid off by agricultural service firms. There were an average of 400,000
persons employed for wages on California farms in 1998, or about three percent
of the state's 14 million payroll employment, but farm workers received
about 16 percent of UI benefit weeks paid.

In 1993, workers laid off by crop
employers collected 1.4 million weeks of UI benefits and workers laid off by
agricultural service employers collected 1.3 million weeks of UI benefits; in
1992, there were 1.7 million weeks of crop UI benefits and 1.4 million weeks of
agricultural service UI benefits.

State Labor Commissioner Marcy
Saunders in October 1999 announced that the Division of Labor Standards
Enforcement (DLSE) collected $54,508 in back wages and illegal tool deductions
owed to 46 farm workers who were employed by FLC Beas Agri Services of Madera
and were harvesting crops for grower Sunmet Inc. Individual workers received
$136 to $1,788. The FLC said that Sunmet did not pay promptly for farm labor
services and that led to bounced checks and illegal

Beginning January 1, 2000, California
employers must once again pay most wage and salary workers 1.5 times their usual
wage after eight hours of work in one day or 40 hours in one week. If
two-thirds of the workers approve through a secret-ballot election, employers
will be able to have four to 10 work schedules without paying overtime (four
10-hour days). Employees paid at least 30 percent more than the $5.75 an hour
minimum wage and covered by a collective bargaining agreement, are permitted to
negotiate alternative work arrangements that do not include overtime pay for
hours or 4/40. Managerial employees are exempt if they earn at least twice the
minimum wage, or at least $23,920 a year.

Aurelio Rojas, "State issues rules on
farm pesticide use," Sacramento Bee, January 19, 2000. Michael Doyle,
"Farmworker-safety laws swing with political pendulum," Fresno Bee, December 26,
1999. Patrick Hoge, "State safety fines getting slashed: Tough initial
penalties on employers cut back," Sacramento Bee, December 19, 1999. Robert
Rodriguez, "The most dangerous ride," Fresno Bee, November 7,