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Lawyers for the farm workers say that the big growers, who own the land and who most profit by the workers' labors, have little incentive to ensure adequate water and shade because farm-labor contractors employ the farm workers. In addition, says the lawsuit, employers see little reason to comply with the regulation because "those few violators who are occasionally identified generally escape with little or no punishment." Attorney Bradley Phillips of Munger, Tolles & Olson says the way to improve worker safety is to "create the maximum economic incentive" for the large growers. Under the current system, labor contractors are potentially liable, but they are "not well capitalized and often have no fixed assets." What is necessary, says Phillips, is to impose a fine or some sort of penalty on the grower.
Farm workers say a key problem with the current regulation is that workers have no right to a rest break until they recognize they are experiencing symptoms and this is often too late to prevent illness. "The evidence points to neglect not ignorance as the cause of farm worker deaths," said UFW President Arturo Rodriguez. He said the union had been in negotiations with state officials to improve the current regulation but with temperatures in the San Joaquin Valley now averaging 100 degrees they cannot afford to wait. "This lawsuit ensures that the governor knows we mean business," Rodriguez said.
Growers say more is being done to protect workers than in past years. Manuel Cunha Jr., president of the NISEI Farmers League, cites the heat-training received by 409 contractors who employee 209,000 of the 380,000 seasonal workforce and the new Igloo water containers that spell out heat-safety precautions in use on farms across the state. "The growers have responded in the most positive and honest way," says Cunha. "We are getting the message to workers that they need to drink cool water, to rest in the shade and to watch for heat-illness symptoms in their co-workers."
Reacting to the lawsuit, Cal-OSHA filed a proposal with the Occupational Safety and Health Standards Board to amend the regulation to require that shade be present at all times. Agency official John C. Duncan said the proposed revision "will make it clear that employees have the right to take a rest in the shade whenever they feel the need to do so to prevent overheating." In the past two months, however, the board has twice failed to adopt emergency proposals to strengthen the heat regulation. After the second rejection, Schwarzenegger issued a statement saying that the board "has failed in their mission to ensure the health and safety of California's outdoor workers."