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July 1995, Volume 1, Number 3

Farm Worker Protection

On May 25, farmers told the House Economic and Educational
Opportunities Subcommittee on Workforce Protections that the
unanimous 1990 US Supreme Court decision in Adams Fruit Co. v.
Barrett that permitted workers to sue employers for injuries caused
by significant safety violations exposed them to dual liability. In
states that do not require workers compensation for farm workers,
some farmers allegedly have dropped workers compensation coverage,
since injured workers can still sue under the Migrant and Seasonal
Agricultural Worker Protection Act.

A bill has been introduced to make workers' compensation the
exclusive remedy for workplace injuries under the Migrant and
Seasonal Agricultural Worker Protection Act MSPA. Ten states require
workers compensation coverage for hired workers on all farms; 16
others require coverage only for workers on certain-sized farms, and
24 states do not require farm employers to provide workers
compensation insurance for hired workers.

The most typical Adams Fruit cases are reportedly those in which
an injured worker receives workers compensation payments; the fact
that the injury was caused by a violation of MSPA permits the worker
to sue for additional damages. Many of the cases involve accidents
when farm workers are being transported to work, or between fields,
in vehicles that do not satisfy MSPA safety requirements.

On June 8, 1995, an Amtrack train killed seven farm workers when
it hit their pick-up truck near the Oregon-Idaho border.

In Idaho, the Legislature voted 47 to 23 not to require farm
employers to provide workers compensation insurance for farm workers.

The Environmental Protection Agency in April issued final changes
to its worker protection standard (40 CFR 170). The standard,
effective January 1, 1995, requires employers to provide farm workers
with personal protective equipment and safety training.

The worker protection standard was published in the Federal
Register August 21, 1992 (57 FR 38102), and revised to meet the
objections of farmers and state agencies. The Farmworker Justice Fund
has threatened to sue EPA over the revisions.

In an attempt at compromise, the EPA in May 1995 announced that it
would require farm employers to train workers in handling pesticides
within five days of their employment, rather than the current 15, but
the EPA would also exempt crop advisers, irrigation workers and
laborers who have limited contact with pesticides from the training
requirement. The EPA also proposed to permit farm workers to re-enter
fields four hours after a spraying, rather than the current 12 hours.

In California, the federal-state Targeted Industries Protection
Program received $800,000 from the California Legislature despite a
recommendation that TIPP be eliminated because it collects only about
40 percent of the fines it assesses. TIPP staff argue that the
percentage of assessments collected is a poor measure of the
program's effectiveness; a better measure, they believe, is the level
of voluntary compliance induced because of TIPP activities.

One effect of TIPP enforcement has been to make raiteros who drive
farm workers to and from the fields in vans aware that they need to
have insurance. However, insurance for a typical van is $2000 per
month or more, and some insurers refuse to sell anything except
annual policies, so that the annual insurance tab can exceed the
value of the van.

California is experimenting with unemployed workers filing claims
for Unemployment Insurance benefits by telephone. The intent of the
program is to save workers time and the state money, but some fear an
increase in UI filing fraud.

About four million California workers filed claims for UI benefits
in 1993, and some are concerned that telephone filing for benefits
might increase the fraud they believe is already rampant. In some
areas, third parties apparently help workers file for benefits, and
then rent claimants living in Mexico post office boxes to collect
their checks (UI checks are mailed to Canada, but not to Mexico).

California is prohibited as a result of a lawsuit from denying UI
benefits to persons who move to areas with few jobs, such as south
Texas, and filing claims that are charged to California employers
there. The local employers in south Texas, whose accounts are not
affected by these UI benefits paid from California, generally agree
that unemployed workers visited them seeking jobs, so that the
workers remain eligible for benefits.

In Florida, the US DOL's Wage and Hour Division said investigators
between December 1994 and mid-March conducted a total of 83
investigations near Fort Pierce, Lake Worth, Labelle, and Immokalee,
and assessed them $211,000 in fines. The violations of MSPA included
being or using unregistered farm labor contractors, transporting
workers in uninsured vehicles, and providing substandard housing for
migrant workers.