California to Ban Practice of Forcing Farm Workers to Weed by Hand

From:
THE AGRIBUSINESS EXAMINER
September 24, 2004, Issue #372
Monitoring Corporate Agribusiness
>From a Public Interest Perspective

EDITOR\PUBLISHER; A.V. Krebs
E-MAIL: avkrebs@earthlink.net
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CALIFORNIA PREPARED TO PASS LEGISLATION BANNING HAND WEEDING AS FARMWORKER HAZARD

MIRIAM PAWEL, LOS ANGELES TIMES: At Cesar Chavez's funeral, his
grandchildren placed on the altar a 12-inch tool known as el cortito, a
relic of Chavez's crusade to ease the pain of farmworkers who stooped for
hours as they yanked out weeds with the short-handled hoe.

California banned the tool in 1975, citing evidence that it caused
debilitating back injuries. But by the time Chavez was buried in 1993,
farmworkers in some fields were bending at even more unhealthy angles: The
ban applied only to tools, so growers told workers to weed by hand instead.

After more than a decade of bitter debate, the state is expected today to
prohibit hand-weeding on farms, with some exceptions, declaring the practice
an immediate danger to the health of thousands of laborers.

The regulation would require most employers to prove the commonly used
long-handled hoes would not work before having workers weed or thin plants
by hand for any sustained length of time. Organic farms and plants grown in
tubs would be exempt.

"It's a daily reality for farmworkers that has gone on way too long being
completely unregulated," said Mike Meuter, lead attorney in the Salinas
office of California Rural Legal Assistance, which took the short-handled
hoe case to the state Supreme Court and has led the push for restrictions on
hand-weeding.

Agricultural groups said the wording appeared to give them enough
flexibility. "We're going to have to live with it," said Rob Roy, president
of the Ventura County Agriculture Assn. and a participant in negotiations on
the issue for years. "It goes a long way toward eliminating unnecessary
hand-weeding."

No one knows how prevalent the practice is right now. But the debate harks
back to the historic and emotional fight over el cortito, "the short one."
Farmworkers hated the tool because it caused crippling pain and also was an
instrument of control: Anyone who rested by standing up was immediately
visible and risked losing their job.

In 1993, a Cal/OSHA medical committee concluded that prolonged hand-weeding
caused the same debilitating back injuries that doctors associated with the
short hoe. Since then, multiple attempts to reach consensus on legislation
or a regulation have failed.

The compromise expected to be approved today by the California Occupational
Safety and Health Standards Board came at the insistence of Senate President
Pro Tem John Burton (Dem.-San Francisco), who agreed to broad changes in the
state's workers' compensation program earlier this year only after Gov.
Arnold Schwarzenegger said his administration would mediate the hand-weeding
dispute.

Jose Millan, the deputy labor secretary who brokered the agreement, said the
key was assuring growers that it did not presage a ban on harvesting by
hand, and clarifying for farmworker advocates that employers would have to
prove there was no acceptable substitute if questioned by Cal/OSHA.

Like most debates about the state's role in regulating the
multibillion-dollar business of agriculture, hand-weeding is fraught with
symbolic as well as practical significance.

Growers see it as yet one more move that chips away at their ability to
compete with farmers outside California who are subject to fewer
restrictions. "For the industry, it's taking away another tool," said Roy.

"Even though hand-weeding is one issue, there are thousands of other issues
here in the state that are making us uncompetitive," said Edward Ortega, a
strawberry grower in Watsonville who heads the Santa Cruz Farm Bureau.

Ortega, who farms both conventional and organic fields, said he would have
to absorb the cost of increasing breaks ten minutes a day, required under
the regulation for those engaged in hand-weeding. "Any regulation put on
agriculture cannot be passed on to the consumer," he said. "The consumer
doesn't care where the product is coming from. They only care how cheap it
is."

Labor advocates see it as part of a pattern in which farm employers resist
change and predict economic ruin, only to find viable alternatives when
forced to protect workers. They point to an interview a week after the ban
on short hoes went into effect in 1975 in which Robert Antle, whose lettuce
firm had fought the ban in court, said he felt chagrined because production
had actually increased when workers switched to standard long-handled hoes.

"The reason they changed was because they were forced to, and if you don't
force them to, they won't," said Hector De La Rosa, a community worker with
the legal assistance organization for more than 30 years and one of the
first to agitate against the short-handled hoe.

The impact of the regulation will depend on how Cal/OSHA interprets the
provision that allows weeding by hand as a last resort.

Cal/OSHA will enforce the ban primarily by responding to complaints, which
it is required to do. Many of those will come from the legal assistance
organization, which plans to focus initially on clear-cut cases "where
there's no reason, no excuse, it's not industry standard, it's not a close
call," Meuter said.

Both sides expect the gray areas to present more problems. "This is a little
unusual," said Len Welsh, acting chief of Cal/OSHA. "This is a regulation
that deals with the management of workers."

It also splits the burden of proof. To cite an employer, Cal/OSHA would have
to prove that hand-weeding took place over a prolonged period. To avoid
fines, which could be as high as thousands of dollars, the employer would
have to prove it was absolutely necessary.

Farmers say that because hand-weeding is slow, it is in their economic
interest to limit its use, even on organic farms where weeds grow more
freely without conventional pesticides. "We do whatever we can to avoid
hand-weeding," said Vanessa Bogenholm, chairwoman of the California
Certified Organic Farmers. "It's the last thing you'd want to do as a
businessperson."

Hand-weeding appears most prevalent in coastal areas, where crops such as
lettuce, carrots, celery and strawberries are grown in rows and can require
delicate weeding at certain times, particularly when they are small.

Many people involved in the issue believe hand-weeding is used most often by
crews working for farm labor contractors, middlemen hired by farmers for a
set price who hire laborers to do the job. Millan said his agency, which
provides an eight-hour course required for licensing contractors, would now
include training on the new regulation. The contractors present a greater
challenge for enforcement because they move around and sometimes go out of
business.

In recommending the change, the Cal/OSHA staff based its medical finding
largely on evidence first gathered in the 1970s by Maurice Jourdane, the
lawyer for California Rural Legal Assistance who argued the short-handled
hoe case all the way to the Supreme Court. Just out of law school, Jourdane
took up the issue on a challenge from De La Rosa. "I took him to the fields
and said, here's a short hoe, go for it. Piece of cake," De La Rosa
recalled. "He lasted about 20 minutes."

There was no discussion then of hand-weeding, said Jourdane, who has just
published a book about the fight. "It's crazy that they're doing it now, but
it's not surprising," he said.

In the early 1990s, the rise of farm labor contractors, new crops and closer
spacing, and increased enforcement of the ban on short tools combined to
make hand-weeding more attractive to farm managers.

Today's vote by Cal/OSHA will be on an emergency regulation that would allow
the ban to go into effect immediately for 120 days on the grounds that the
state would be failing in its duty if it did not reduce the dangerous
working conditions immediately. Growers object that the debate has been
going on for ten years, and question why the ban cannot be handled through
the normal process.

Millan said the final resolution, which will go through the longer comment
period, can reflect the experience of enforcing the emergency ban. "We have
a vehicle to do it, so we should adopt it without further delay."[ September
23, 2004 ]