Harder Times for Poultry Workers

Jordan Barab

Jordan Barab Former Deputy Assistant Secretary of Labor, OSHA

A 59-year-old employee at Allen Harim poultry plant in Harbeson, Delaware was killed last week from a serious head trauma after being struck in the head with a piece of equipment on an electric hoist when he and another employee were attempting to change the battery on a pallet jack.

This was not Allen Harim’s first workplace safety and health problem.

In 2015, OSHA issued a $35,000 citation to the company, warning the poultry processor that “The combination of musculoskeletal disorder hazards, lack of proper medical treatment for musculoskeletal disorders and underreporting of injuries at this plant must be addressed.”  The OSHA citation also included a violation for not allowing workers to use the bathrooms. OSHA also sent a Hazard Alert Letter to Allen Harim, warning of deficiencies in the facility’s medical management program.

And workplace safety is not Allen Harim’s only problem.  The Washington, D.C., nonprofit Environmental Integrity Project issued a report yesterday, “Water Pollution from Slaughterhouses” noting that Allen Harim is facing a $241,000 fine for dozens of wastewater-related violations found at its Harbeson plant between 2012 and 2016 – which the company has appealed. The report studied poultry processing companies who dumped illegal levels of nitrogen, fecal bacteria or other pollutants into the waterways across the country.

Working in a poultry processing plant is never easy or safe — whether deboning chickens, doing mechanical work or cleaning up after the day’s operations. Poultry processing is one of the most unpleasant and dangerous jobs in the country. And now it’s likely to get worse.

A NIOSH study a few years ago found in one plant that 34 percent of poultry workers had carpal tunnel syndrome (CTS), and 76 percent had evidence of nerve damage in their hands and wrists. In another study, 42 percent had CTS. Further, workers in the poultry industry suffer finger amputations at the highest rate of any U.S. industry.

Working in a poultry processing plant is never easy or safe — whether deboning chickens, doing mechanical work or cleaning up after the day’s operations.  But now it’s getting harder.

And these upsetting numbers are not because these workers are accident prone. The injuries are related to their work and the awkward postures, repetitive motions, heavy lifting, dangerous machinery and poor procedures to got with it. An article in The Hill by Naomi Tsu,  deputy legal director of the Southern Poverty Law Center in Atlanta last year described what it was like for a Cuban worker whose job it was to fold chicken wings on the production line.

As bird carcasses sped by him, he grabbed, twisted, and folded their wings into the position the company wanted. His quota was 40 wings a minute, or about 18,000 a day.

To meet this benchmark, he had to repeat the same motions thousands of times, putting pressure on his wrists and hands. After about a month, he was diagnosed with tendinitis and carpal tunnel syndrome, hand and wrist injuries resulting from overuse. When he could no longer be of service to the company because of his work-related injuries, he was fired.

And last December Peter Waldman and Kartikay Mehrotra of Bloomberg Businessweek penned a devastating article about he hazards faced by workers who clean up poultry plants after the day shift goes home.

Handicapping OSHA

Despite the hazards the face, workers in poultry plants — mostly immigrants — may be some of the least likely workers to use their rights under the Occupational Safety and Health Act to call for an OSHA inspection. Even in the unlikely event that poultry workers understand their rights, that they even know what OSHA is, or how to contact the agency, they are often intimidated by hostile management.  Many are undocumented or have family or friends who are undocumented.  Employers have no problem calling immigration on troublesome workers, or firing and replacing those who are working legally.  And although the injury and illness rates are high in poultry plants, there is strong evidence of underreporting because employers retaliate against workers who dare to report their injuries.

Even in the best of circumstances, resource and legal constraints keep OSHA from getting to the most hazardous workplaces often enough. On average, if OSHA were to inspect every workplace in the country just once, it would take the agency over 150 years.

A federal court this week further handicapped OSHA’s ability to inspect poultry plants and protect workers. 

To make matters worse, a federal court this week further handicapped OSHA’s ability to inspect poultry plants and protect workers.  In a unanimous decision in the in the Mar-Jac case, the 11th Circuit Court of Appeals ruled that when OSHA inspected a workplace because someone was injured on a piece of machinery, the agency was not allowed to expand the inspection to other parts of the plant, even though the company’s injury and illness log indicated that large numbers of workers were being injured in other parts of the plant.

OSHA is handicapped not only by resource constraints, but also by legal constraints. Legally, OSHA inspectors can’t just go into any plant any time they want to. They need “probably cause.” Legally, there are only two ways OSHA inspectors can enter a plant for an inspection:  First, a “programmed inspection,” as part of an emphasis program, where OSHA issues a written program, based on evidence of problems in an industry or with a specific hazard, where employers in a hazardous industry are randomly chosen to be inspected. OSHA’s other option to inspect a plant is an “unprogrammed inspection” where OSHA has probable cause due to inspect — either from a fatality, or an injury, worker complaint, hospitalization, amputation or referral that had come to the agency’s attention. Even then, the inspector can only inspect the specific are of the suspected violation (or complaint) or anything within their sight as they walk to the location of the hazard.

Understanding that poultry workers are reluctant to contact OSHA or know how to file an OSHA complaint, the Obama administration tried to develop more effective ways for OSHA inspectors to identify hazards in poultry processing plants.  In 2016, OSHA sought to combine programmed and unprogrammed inspections by issuing an Emphasis Program in OSHA’s southern Region IV for poultry that allowed OSHA inspectors to expand a narrow “unprogrammed” inspection into a full plant inspection — encompassing all common hazards in poultry (musculoskeletal injuries, amputations, chemical exposures, communicable diseases, bathroom access, etc.)  The probable cause was based on the assumption that data gleaned from the employer’s injury and illness logs would provide a “reasonable belief” that a violation of the law had been committed, as well as strong, well documented evidence of widespread hazards common in the nation’s poultry processing plants.

But employers who can afford high-priced attorneys really didn’t like the idea of expanding OSHA accident inspections into comprehensive, full-plant inspections where OSHA inspectors might poke their noses into hazardous areas that the companies wanted to keep hidden.  This week’s legal decision resulted from a 2016 incident where OSHA attempted to expand an injury inspection at a Mar-Jac poultry facility in Gainesville, Ga, beyond the initial incident.  MarJac refused to allow OSHA to expand — which eventually led to this week’s court decision.

Bloomberg Businessweek‘s Waldman and Mehrotra explain how the company responded to the OSHA inspection:

In 2016, when three OSHA investigators showed up at Mar-Jac Poultry in Gainesville, Ga., to investigate an electrical explosion that injured a maintenance worker, Mar-Jac allowed them to examine the site of the incident but nothing else. OSHA discovered a rash of other injuries in the plant’s injury log and tried to expand the search, but the company’s lawyer sent them away.

When an OSHA inspector returned four days later to examine the blast victim’s tools, Mar-Jac’s attorney, Mark Waschack of Wimberly Lawson Steckel Schneider & Stine in Atlanta, said the inspector could walk through the plant to the locker room where the tools were located, but only if he agreed to wear a cardboard box over his head to blind him to any safety hazards. “Mr. Waschack stated that he had previously done this to two [inspectors] in two previous OSHA inspections,” wrote OSHA’s Robin Bennett in a court affidavit.

Bennett refused to wear the box. Instead, OSHA issued a search warrant, which, at Mar-Jac’s request, a Gainesville federal judge quashed, saying OSHA lacked probable cause. The agency fined Mar-Jac $20,000 for violations linked to the explosion and appealed the search-warrant ruling last March to the 11th Circuit Court of Appeals in Atlanta, arguing the injury logs and electrical blast provided a “reasonable suspicion” of safety violations.

The court determined that evidence that workers had been injured didn’t necessarily mean that there was “reasonable belief” that there might be hazards at the plant that would result in citations. 

The court found that despite the sordid safety history of the industry and the documented injuries on Mar-Jac’s log, OSHA did not have probable cause to expand the inspection to the entire facility because evidence that workers had been injured didn’t necessarily mean that there was “reasonable belief” that there might be hazards at the plant that would result in citations. Go figure.

It’s not clear yet what this decision means for OSHA’s efforts to leverage its severely under-resourced enforcement resources in dangerous industries like poultry, or exactly what kind of evidence OSHA needs to establish probable cause in the future. The good news is that the decision was not officially “published,” which means it doesn’t set a precedent for future litigation. So there’s that.

When Nature Calls, But the Boss Says No

Meanwhile, it gets worse.

I worked behind a desk in an office most of my life, so when nature calls, being able to get up to go to the bathroom has always been a no-brainer for me — and for most Americans. But that’s not the case for many poultry workers, like those at Sanderson Farms in Texas: “We have witnesses and people who have told us that they have begged to go to the bathroom and have had to urinate while working on the production line,” said Plankey Videla. “Quite a few women have also come and told us about harassment on the part of supervisors, where they will say in exchange for sexual favors, here’s an easier position on the line.”

“We have witnesses and people who have told us that they have begged to go to the bathroom and have had to urinate while working on the production line.” — Plankey Videla, Centro de Derechos Laborales

Videla is an advocate for workers rights with Centro de Derechos Laborales in Texas.

Now, some former poultry workers and their supporters aren’t taking it any more. Dozens of activists and former employees gathered outside the Sanderson Farms plant in Bryan Texas last week to protest unsafe and unfair working conditions at the poultry processing plant.

 

“This is humiliating, unfair and against OSHA regulations, which state very clearly that employers must provide employees access to bathrooms when needed,” explained Nancy Plankey Videla…. In addition to her group, the workers were supported by Interfaith Worker Justice, Brazos Interfaith Immigration Network, and Council for Minority Student Affairs. And it’s not just Sanderson Farms and not just Texas. Workers from various other plants in North Carolina and Arkansas, that claim the same mistreatment, protested too.

Oxfam published a report in 2016 describing the denial of bathroom breaks to poultry workers. “I had to wear Pampers. I and many, many others had to wear Pampers,” one worker told Oxfam.

And last year, the Government Accountability Office issued a report that found that poultry plant workers often don’t realize that they have a legal right to have bathroom breaks, and therefore don’t bring it up to OSHA inspectors when they’re in the plant. To determine the extent of the problem, the GAO therefore recommended that OSHA inspectors ask workers during meat and poultry plant inspections about problems with bathroom access.

The GAO also recommended that OSHA inspectors make arrangements to talk to workers in privacy, after work, about conditions in the plants, because workers may be too intimidated to talk to inspectors while the boss is watching.

Both good ideas. Unless you’re Trump’s OSHA. Acting Assistant Secretary Loren Sweatt rejected the GAO recommendations. A letter from Sweatt to GAO complained that

GAO’s recommendation to conduct additional offsite interviews, however, is challenging in terms of witness cooperation, resources and CSHO safety. Moreover each inspection requires a flexible approach to address unique workplace hazards.  OSHA cannot commit to asking about bathroom access during each inspection at a meat or poultry processing facility.

In response to a Congressional oversight letter about OSHA’s uncooperative response from Senate Democrats Patty Murray (D-WA) and Robert Casey (D-PA) and House Democratic leaders Bobby Scott (D-VA), Rosa DeLauro (D-CT),  Sweatt later softened her opposition to the GAO recommendations.

So Let’s Make Things Worse

Just to add physical injury to insult, the Department of Agriculture published a notice last month in the Federal Register that would raise line processing speeds at certain poultry plants, raising the already high likelihood that poultry plant workers will suffer from disabling musculoskeletal disorders. USDA issued the notice without even seeking public input. Rep. Rosa DeLauro (D-Conn) is not amused: “It is unconscionable that the Trump administration would rush this process, without an ample opportunity for the public to weigh in. I urge the Trump administration to reverse course.”

This action has been under consideration for a while. DeLauro had joined Senator Patty Murray (D-Wash) in sending a letter to USDA last July, stating that “it appears the agency lacks the authority to grant these waivers”  and urged the agency to abandon the policy.

So enjoy your wings tonight. They may not cost much, but they don’t come cheap.

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Reposted from Confined Space

Posted In: Allied Approaches

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