24 • OCTOBER 2015
www.desertexposure.com
BORDERLINES • MARJORIE LILLY
Working in the Fields Field laborers gain right to Workers’ Compensation
T
hrough the good graces of the judicial process and the labors of several activist groups, agricultural workers in New Mexico now have the right to Workers’ Compensation. (“Agricultural workers” in this case refers to harvesters of crops, dairy workers, and ranch hands.) Although media coverage on the issue has been scarce and none of the 10 or so farm workers interviewed for this article had heard anything about it, the New Mexico Center on Law and Poverty has just taken a stride toward justice. They, along with Sin Fronteras of El Paso and Help-New Mexico, overturned the section of the New Mexico constitution that excluded agricultural workers from receiving Workers’ Compensation, a clause that had existed since the 1930s. T h i s was done based on the principle of equal protection under the law, making it unconstitutional. A June 22 decision this year by New Mexico Court of Appeals made the ruling clear. In a letter to farmers and
ranchers written a few days after the decision, the Workers’ Compensation Administration acknowledged on its website that farmers, growers, and contractors need to get insurance “as soon as possible.”
Workers need support
There’s always been a need for Workers’ Compensation for these employees. Over a decade ago I knew a man in his late sixties who had his leg broken in the fields when a truck ran over him. He had to pay $400 to get his bone set, with the help of his son. In the fields, where some men run holding four buckets above their heads, men or women often trip on stones. I’ve often heard that farm labor contractors basically pay workers for injuries or work-related illnesses when they feel like it — sometimes they do, sometimes they don’t. I knew a man about 10 years ago who had had an eyeball removed after a twig on a red chile plant poked him in the eye.
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The contractor paid him a few hundred dollars, but after his operation the man only earned about half of what he’d earned before in the fields. Dairy worker Fernando Moreno in Salem cut himself seven years ago with a knife he had in his hand when a tractor pushed up against him. He was lucky that his employer paid him $4,000 in medical expenses and for the seven month recovery time. Injured dairy workers are often neglected. A man in Palomas, the one in the photo with this article, many years ago broke his arm when working in a field in Columbus. He was completely neglected by the grower (who left the area long ago), and had no money to go to a doctor. His arm was grotesquely deformed since that time.
Appeals court supports compensation
The New Mexico Court of Appeals presents many arguments and statistics to make their case. “There’s nothing rational about a law that excludes from Workers’ Compensation benefits employees who harvest crops from the field while providing benefits for the employees who sort and bag the very same crops,” the Court said in the June 22 decision. The document claims that only 1 percent of all agricultural workers have private health insurance. An NMCLP survey in 2012 found that 47 percent of fieldworkers experienced at least one pesticide-related health problem and that 53 percent of dairy workers were inured while working. It quoted the NMCLP estimate that the amount farmers and ranchers would pay for Workers’ Compensation would equal only 1 percent of their profits. The Court stated Workers’ Compensation would prevent injured workers from becoming public charges and would protect employers from personal injury lawsuits. The New Mexico Court of Appeals decision would add about 10,000 workers to the 687,239 people already signed up for Workers’ Compensation in New Mexico, or about 1.4 percent of the previous total.
Employers fear double-dipping
A horticultural agent at Doña Ana Cooperative Extension, Jeff Anderson, articulates the point of view of the farmers and ranchers. “They feel underrepresented,” he said. “They feel like they’re going to suffer. The worker tends to work at a farm a half-day here and a half-day there, a week here and a week there. The employee doesn’t have to prove that he was working on
A laborer who lived in Palomas, broke his arm when working in a field in Columbus around 20 years ago. He could not afford to go to the doctor and the grower (no longer there) ignored the injury. (Photo by Marjorie Lilly)
a certain farm.” He said farmers fear that there’ll be “double-dipping,” by the workers – that they may try to get paid by two growers for their injury or illness. “What I’ve heard from growers is that they’re going to end up paying no matter what happens.” Anderson fears that in the Workers’ Compensation system “the ultimate responsibility is with the grower. Everyone else can wash their hands.” In regard to dairy employers, Anderson adds, “I’m sure they feel the same way.” Tim Davis, a lawyer at the New Mexico Center on Law and Poverty claims that in regard to the fear of double-dipping by farm workers, “There’s no incentive for fraud by workers. Across industries, there’s no industry less likely to have employees who would like to perpetuate fraud.” In the case of field harvesters, the issue of who is responsible for Workers’ Compensation coverage — the grower or contractor — is complex. The letter to growers on the New Mexico Workers’ Compensation Administration website states: “Depending on the degree of control you exercise over the employees of the independent contractors, the employers could be considered shared employers, in which case your business may be required to provide coverage for employees.” Davis of NMCLP says that the WCA has a control test for determining responsibility. “It’s a case-by-case specific test,” he says. “Sometimes you do know, other times you don’t. If investigators think there’s an
important relationship (between the grower and employee), it could go to the courts.”
Fear of retaliation
This may not be the end of the story. The five judges of the state Supreme Court have this case under review for constitutionality. When one thinks about how often farm workers have received sub-minimum wages over the years, or been cheated out of unemployment or Social Security benefits by contractors, it’s logical to be skeptical about how widespread the effect of the Workman’s Compensation ruling will be. The issue of retaliation by labor contractors, growers, or owners has always been a live one in southern New Mexico agriculture. Many fieldworkers interviewed for this story, as usual, didn’t want their name used for fear of losing their work. And among field workers there are already rumors of unscrupulous contractors asking their workers to sign waivers, or papers stating that he or she won’t file for Workers’ Compensation. I hope the organizations that deal with these workers – the Department of Workforce Connections, Occupational Safety and Health Administration, and others – advertise the Appeals Court decision to all agricultural workers.
Borderlines columnist Marjorie Lilly lives in Deming.