US to Workers Killed on Small Farms: We Don’t Care

Some workers’ lives are worth more than others, according to Congress.

If you’re killed in a factory or construction site due to blatantly unsafe conditions allowed by your employer, OSHA will investigate and likely issue citations and fine the employer if violations of OSHA standards are identified.

But if you’re an employee in a small farm (under 11 employees), and clear violations of OSHA standards lead to your untimely death, Congress has told OSHA “hands off!”

Language in OSHA’s appropriations bill since the 1970’s has prohibited OSHA from conducting any enforcement activities on small farms (as long as they don’t also maintain a temporary labor camp). That means OSHA can’t investigate deaths on small farms, much less issue citations or fine an employer. And it doesn’t matter if it’s just one death, or 10 deaths. OSHA Is not allowed to set foot on the premises.

Congress has a similar prohibition against OSHA enforcement of safety violations in certain small businesses. But in this case, there is an exemption to the exemption.  OSHA is allowed to investigate and cite in the event of a worker complaint or a fatality.  But not even a worker complaint or a bunch of dead workers will get OSHA onto a small farm.

Maurice Kellogg had the bad fortune of getting himself killed on a “farm” that employed fewer than 11 employees.  Although OSHA has a grain facilities standard since the late 1980s that has been remarkably successful in preventing deadly grain facility explosions, the agency “dropped its investigation in late June after learning the privately-owned elevator had too few employees to fall within its jurisdiction.”

And just to add insult to injury, the facility is “also exempt from regular inspections by the Nebraska State Fire Marshal’s Office.”

So, no inspection, no investigation, no findings of why the explosion happened, who was at fault or how to prevent similar tragedies in the future.

Background

Now I don’t know anything about this specific case that I haven’t read in the newspaper, but I do have extensive experience working with the powerful agriculture lobby which gets incensed that the federal government would ever think of meddling in small farms’ right to kill its employees without the interference of government bureaucrats.

After OSHA mistakenly cited a farm that fell under the agriculture exemption in 2012, the agency re-wrote guidance defining where the agency was and was not allowed to enforce in small agricultural facilities.  It turns out that figuring out exactly what a “farm” is isn’t easy. OSHA determined that a farm is where you grow stuff, but what about other processes that exist on a farm — such as processing of products (like apples into juice in machines that might crush hands or electrocute workers) or storage of agricultural products (like grain in grain silos that might explode).

OSHA determined in a “policy clarification” issued in 2014 that operation such as ” storing, fumigating, and drying crops grown on the farm” were exempt as long as they stored or processed their own grain or other products. But if the facility performs activities

that are not related to farming operations and are not necessary to gain economic value from products produced on the farm, those activities are not exempt from OSHA enforcement. For example, if an exempt small farm maintains a grain handling operation storing and selling grain grown on other farms, the grain handling operation would not be exempt from OSHA enforcement under the appropriations rider.

So, we are forced to assume in this case, that Andersen Farms, Inc. was only storing its own grain in the elevator that exploded, killing Maurice Kellogg.  But we will never learn why the facility exploded, what safe work practices were violated, or how future incidents could be prevented.

Because, according to Congress and the agriculture lobby, the official policy of the United States is “We don’t care.”

What Is To Be Done?

Fighting the powerful agriculture lobby (especially if you’re allegedly affecting “small family farms”) is a fools errand. It’s the so-called “third rail” of regulation.

We did make attempts during the Obama administration to soften the exemption — to at least allow OSHA to investigate a fatality, without actually issuing citations. At least in that case, valuable lessons might be learned.

But no dice.  Not even workers’ lives can get in the way of free enterprise on small farm.

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Reposted from Confined Space

Posted In: Allied Approaches

Union Matters

Uber Drivers Deserve Legal Rights and Protections

By Kathleen Mackey
USW Intern

In an advisory memo released May 14, the U.S. labor board general counsel’s office stated that Uber drivers are not employees for the purposes of federal labor laws.

Their stance holds that workers for companies like Uber are not included in federal protections for workplace organizing activities, which means the labor board is effectively denying Uber drivers the benefits of forming or joining unions.

Simply stating that Uber drivers are just gig workers does not suddenly undo the unjust working conditions that all workers potentially face, such as wage theft, dangerous working conditions and  job insecurity. These challenges are ever-present, only now Uber drivers are facing them without the protection or resources they deserve. 

The labor board’s May statement even seems to contradict an Obama-era National Labor Relations Board (NLRB) ruling that couriers for Postmates, a job very similar to Uber drivers’, are legal employees.

However, the Department of Labor has now stated that such gig workers are simply independent contractors, meaning that they are not entitled to minimum wages or overtime pay.

While being unable to unionize limits these workers’ ability to fight for improved pay and working conditions, independent contractors can still make strides forward by organizing, explained executive director of New York Taxi Workers Alliance Bhairavi Desai.

“We can’t depend solely on the law or the courts to stop worker exploitation. We can only rely on the steadfast militancy of workers who are rising up everywhere,” Desai said in a statement. 

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Make Father's Day Union Made!