Joan D. Flocks
Excerpted from: Joan D. Flocks, The Environmental and Social Injustice of Farmworker Pesticide Exposure , 19 Georgetown Journal on Poverty Law and Policy 255 (Spring, 2012) (207 Footnotes)
If the theory of compensating wage differentials were absolute, there would be no need for protective occupational health and safety regulation. The theory in a pure form assumes that workers and employers are in a total contractual state where workers assume and are compensated fairly for occupational risks. Regulation would hinder the bargaining process between employees and employers. The fact that regulation does exist, therefore, must reflect some inherent recognition that workers are not always on an even bargaining level with employers, and that some intervention is needed to put them there; regulations arise to protect potentially less powerful parties. In the case of occupational health standards, regulation may also exist in recognition of public health as a common good mandating protection even in spite of workers' own cognitive dissonance, and as such it should not be subject to bargaining.
Successful protective regulation requires that government enforce standards, that management complies with standards, and that workers are knowledgeable about standards. In the case of farmworkers, federal regulation should provide protection in two ways: directly--by regulating the conditions of exposure, and indirectly--by providing the resources farmworkers need to achieve some control over their working conditions. Yet for farmworkers, regulations that directly involve pesticide exposure are often nonexistent, ineffective, or unenforced. Furthermore, competitive domestic and international market forces pressure employers to lobby for less regulation of pesticides and pressure workers to remain unorganized and silent about workplace safety.
Farmworkers are exempt from many regulations that could afford indirect protection under the system of agricultural exceptionalism, which emerged during a historical time in the U.S. when institutional discrimination was accepted and prevalent. Even when protective regulation does exist, however, many employers use a variety of practices--such as hiring labor contractors or a temporary workforce--that allow them to circumvent laws and transfer many of the physical and economic risks of agricultural employment to the workers.
A. Direct Regulation of Pesticides
In 1947, the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) was enacted to ensure the effective registration of pesticides containing chemical ingredients that had been largely created during World War II. In 1970, the Environmental Protection Agency (EPA) was established and FIFRA administration and staff were transferred to it from the United States Department of Agriculture At that time, FIFRA focused mainly on issues such as pesticide labeling and registration and not on workplace safety. Later that year, the Occupational Safety and Health Act of 1970 (OSH Act) was signed into law. The OSH Act created the Occupational Safety and Health Administration (OSHA), which had the mandate to assure as far as possible every working man and woman in the Nation safe and healthful working through the promulgation and enforcement of occupational safety standards. Although it seems logical that OSHA would assume regulatory authority over agricultural workplace hazards such as pesticides, this was not to be the case. The OSH Act included a clause that prevented the Secretary of Labor from regulating working conditions when another federal agency had statutory authority to do so. The EPA had been moving in the direction of regulating agricultural pesticide exposure when it promulgated an early version of the Worker Protection Standard (WPS) in 1974. Sensing impending negative consequences for farmworkers in having the EPA administer pesticide safety regulations, two advocacy groups and a pesticide-affected worker filed an action to compel the Secretary of Labor to issue permanent farmworker pesticide safety regulations under OSHA, but the D.C. Circuit held that Congress had conferred authority to regulate pesticides at agricultural workplaces to the EPA. Currently, OSHA maintains only a limited role in promoting agricultural pesticide safety through provisions such as the Field Sanitation Standard.
Under FIFRA, there are essentially two avenues of pesticide regulation that directly affect farmworkers: the registration and re-registration processes and the WPS. According to FIFRA, in order for a pesticide to be distributed or sold, it must first be registered. To register a pesticide, an applicant must submit information such as the chemical formula, a request that the pesticide be classified for general use or for restricted use (or both), the proposed labeling, and ... if requested by the Administrator, a full description of the tests made and the results thereof upon which the claims are based, or alternatively a citation to data that appear in the public literature or that previously had been submitted to the Administrator The Administrator shall register a pesticide if the Administrator is satisfied with the labeling and other material submitted and if the Administrator determines the pesticide will not cause unreasonable adverse effects on the The definition of environment includes water, air, land, and all plants and man and other animals living therein, and the interrelationships which exist among
There are several concerns regarding the data requirements and other provisions of the registration process. First, there is much flexibility to the data requirements, including exemptions, exceptions, and other Administrator discretion regarding the provision of data. Second, in addressing the proper registration, labeling, and seizure of misbranded pesticides, the Administrator can rely on assurances and studies by manufacturers themselves-- which creates a conflict of interest. In fact, the pressure from pesticide manufacturers and agribusiness in the past has resulted in the EPA streamlining the registration process. Third, the registration process requires an applicant to submit test data to the EPA demonstrating that the pesticide will perform its intended function without unreasonable adverse effects, including reports of acute and chronic health effects. However, as discussed, these data are lacking and there is no special consideration for people who work daily with these pesticides, such as farmworkers. Finally, one of the most controversial aspects of the registration process is that several provisions explicitly describe the consideration of economic factors such as the benefits of using the pesticide and the expense of generating data. In other words, the regulation provides for a cost/benefit analysis that weighs the unreasonable risk to humans or environment against the beneficial commercial use of the pesticide in question. Yet, the adverse effect of pesticides on workers is a public health matter, and it is questionable whether it should be subject to an economically driven calculation.
The second FIFRA component that directly impacts farmworkers and pesticide safety is the WPS, which was expanded in 1992 to include not only workers performing hand labor in fields and nurseries, but also those who mixed and applied pesticides. According to the WPS, the specific means by which an employer is required to protect farmworkers include: enforcing entry time restrictions into pesticide treated areas; providing posted and/or oral notice about treated areas to farmworkers; providing information about applied pesticides in a centrally located area; and providing training with specific instructions about how farmworkers can protect themselves from pesticides. The WPS also requires employers to provide sufficient direction about the regulation to supervisors of workers and to require those supervisors to assure workers' protection and compliance with the regulations. Employers are directed, in the event of a poisoning, to provide prompt transportation from the workplace to an emergency medical facility where the employer shall inform the treating medical personnel of the type of pesticide involved and the circumstances of exposure.
Several evaluations have questioned whether the WPS has succeeded in protecting farmworkers from pesticide exposure. In particular, the quality and effectiveness of WPS training for farmworkers has been questioned. Researchers have found that employer training may be nonexistent, minimal, or in a format that does not guarantee that workers actually learn anything. There are many practical considerations that prevent farmworkers from complying with safety recommendations as well. For example, farmworkers may not have access to facilities where they can wash their hands during the workday or to washing machines or showers after work. Furthermore, several investigations suggest that perceived control over the ability to protect oneself from pesticide exposure is strongly correlated with behavior and that farmworkers do not feel a sense of control at their workplaces. Finally, the WPS requires that technical, accurate pesticide safety information be communicated through employers and supervisors, thus assuring that farmworkers are dependent on these parties for their personal safety.
Another major criticism of the WPS has to do with states' role and history in enforcement. Under FIFRA, primary authority to enforce pesticide regulations is devolved to the states under a cooperative federalism scheme in which the EPA retains overseer capacity to ensure that states continue to meet the federal standards. The anticipated benefit of devolving environmental statutes is that decision-making is moved closer to an affected public and thus will be more efficient and democratic. This again assumes, however, that the affected public has full access to information about an issue and that the overseer federal agency follows through when needed on its ability to withdraw a state's authority. If this does not occur, the fear is that the states will engage in a race to the bottom and that a nationally inconsistent pattern of monitoring practices will emerge. Indeed, this is reported to be the case with the WPS and FIFRA's labeling and use requirements, with detrimental results including: a lack of a standardized monitoring; lack of inspections; unpenalized violations; underreported violations; lack of worker training; lack of posting of information; and early re-entry into treated work areas.
B. Indirect Regulation
In addition to regulations that directly address occupational pesticide usage, there is legislation that can afford workers occupational protection by allowing them to exercise more control over their workplaces. For example, workers who can engage in dialogue and bargaining with their employers are better able to ensure that there are adequate health and safety measures or that they are being proportionately compensated for occupational risks. Since the 1930s, the rights of U.S. workers to organize, engage in collective bargaining and work stoppage methods, and receive a minimum wage and overtime pay have been protected by federal laws such as those that eventually evolved into the National Labor Relations Act (NLRA) and the Fair Labor Standards Act But even with the inception of these laws, Congress failed to extend their protections to farmworkers under the doctrine of agricultural exceptionalism--a practice that historically emerged from negotiations between Southern politicians seeking to protect agriculture's access to cheap labor (which at the time was predominately African-American) and Franklin D. Roosevelt's administration attempting to promote New Deal social and economic reform. The outcome of this policy was institutional discrimination and its legacy remains in place today.
For example, the NLRA provides important legislative protection for workers. It recognizes that strikes and other forms of work disruption resulting from uneven bargaining between workers and employers are detrimental to commerce. To discourage such disruption, the NLRA seeks to level the playing field for workers by protecting their right to associate, organize, select representatives, and, most importantly, engage in collective bargaining. But the NLRA explicitly excludes farmworkers. It is very difficult for farmworkers to organize without legal protection against employer retribution, and the result has been that while the nation's other workers are able to engage in collective action to increase their salaries and improve their working conditions, farmworkers often have had to fight just to be paid their existing wages. Unorganized workers who fear employer retribution will not press for increased safety measures at the workplace.
The FLSA recognizes that working conditions that reduce the standard of living necessary for the health, efficiency, and general well-being of workers can eventually interfere with productive commerce. Thus, the FLSA seeks to protect commerce by regulating working conditions such as minimum wage, overtime pay, recordkeeping, and youth employment for employees in private and public industry. Originally, farmworkers were excluded from the FLSA, but in 1966 Congress amended the Act, extending the minimum wage and overtime provisions of the Act to the majority of farmworkers. However, farmworkers are still subject to exclusions. For example, certain farmworkers can be exempt from minimum wage, overtime pay, and child labor provisions.
C. Other Factors that Complicate Protection
Even where protective legislation does exist for farmworkers, agricultural employers have historically used labor arrangements that can circumvent this regulation by shifting the risks of farmwork away from the employer onto other parties. Such practices include temporary worker programs and the use of labor contractors (also known as crewleaders) Temporary worker programs have been a mainstay of the agricultural industry since the 1940s, when the Bracero program was initiated. This program resulted from bi-national agreements that allowed Mexican citizens to migrate into the United States and work as temporary farmworkers. While this stream of accessible labor was originally justified as necessary to replace the United States citizens that had become involved in World War II and in wartime industries, the arrangement was extended for more than two decades and was fraught with exploitative practices. Employers had maximum control over their workforce and introduced the piece rate system of compensation and production quotas. All contracts were renewable, but temporary, and the competition for these jobs discouraged labor organizing. Temporary worker programs have recently gained popularity again among employers concerned about tightening immigration controls that could limit their access to cheap labor. As with the Bracero program, the current programs benefit employers by ensuring a stream of available, documented workers, but they also allow those employers to maintain maximum control over their workforce while discouraging collective action or expression of workers' rights.
Employers hire crewleaders to recruit, manage, pay, and fire farmworkers. The practice of using crewleaders is indicative of an unorganized, irregular, and relatively powerless workforce, and it has increased with the rise of restrictive immigration policies that pressure employers to avoid hiring undocumented workers. The practice allows employers to be insulated from workers, shift responsibility for occupational safety onto workers, and avoid liability for regulatory violations involving matters such as training, injuries, and lost wages. It also has the potential of being highly exploitative and even dangerous for workers. In the past fifteen years, for example, prosecutors have brought numerous cases in Florida against unscrupulous crewleaders charged with crimes including extortion, kidnapping, illegal use of firearms, involuntary servitude, smuggling, and peonage--against members of their crews.
. Director, Social Policy Division, Center for Governmental Responsibility, Levin College of Law, University of Florida; B.S., M.A., J.D.,