State-Union Partnerships in Labor Standard Enforcement: A Response to the Neoliberal Erosion of Worker Protections

The feeble occupational safety regulations and enforcement that I describe in my book are the result of the neoliberal evisceration of protections for workers over the past three decades. Federal and state policymakers have responded to financial crises by cutting funds for occupational safety and health agencies, balancing budgets by sacrificing the goal of workplace safety. Under both the Reagan and Bush administrations, the federal government cut the budget of the Occupational Safety and Health Administration (OSHA) and replaced worksite inspections with “voluntary compliance” programs (1). Meanwhile, in 2013, federal sequestration led to a further reduction in federal funds (2). Because state occupational safety and health agencies like Cal-OSHA are dependent on grants from federal OSHA for up to half of their own budgets (3), declining federal funds in turn hamper states’ enforcement capabilities. Declining funding has thus led to “regulatory dysfunction” at federal and state health and safety agencies; agencies are charged with protecting workers’ workplace safety even as they lack both the resources and statutory authority to do so (4).

Austerity policies have crippled not only federal OSHA but also Cal-OSHA’s enforcement capabilities. In 2011, the state of California responded to a budget shortfall by freezing the hire of public employees. Since then, the state has seen a steady decrease in Cal-OSHA inspectors. In 2011, there had been 195 active compliance officers; this number shrunk to 181 in 2014 (5). In August 2014, Cal-OSHA had one inspector for every 99,465 workers, as compared to 1 for every 66,000 inspectors at federal OSHA or 1 to every 33,000 in Washington state’s OSHA (6). Limited budgets not only reduce the number of workplace inspectors but also weaken employer compliance; they encourage OSHA staff to reach settlements with employers because they lack the funds to litigate (7).

In 2013, federal OSHA’s annual review of the state agency identified the agency’s understaffing as an issue of “major concern” (8). The review noted lengthy delays in responding to complaints, a number of inspections conducted “well below the federal average,” a lack of inspections in particularly hazardous industries, and low rates of serious, willful or repeat violations.[i] Because state occupational safety and health agencies must demonstrate that they are “at least as effective” as federal OSHA in protecting workers’ safety and health, the federal report went so far as to question of whether the agency should be dissolved (9). Governor Brown and the Department of Industrial Relations—California’s department of labor—responded to this criticism by authorizing the addition of 31 new enforcement positions in 2014 and 43 in 2015 (10).

The weakening of occupational safety and health enforcement in California may be viewed as one facet of a broader neoliberal weakening of workplace protections—the defunding of labor and employment protections (11), the scaling back of workers’ compensation insurance programs (12), and the increase in anti-union and anti-worker legislation promoted by corporate lobbies (13). My book tells the story of how feeble regulations and inadequate enforcement hampered the potential of the nation’s first mandatory protections for outdoor workers. Yet at the same time, my book documents how the concerted efforts of farmworker advocacy organizations forced the state to strengthen its heat illness standard and beef up enforcement. The lawsuit the United Farmworkers union (UFW) mounted against Cal-OSHA drew attention to the agency’s negligence in enforcing the state’s new regulations. Meanwhile, the settlement it reached with the state was historic in granting the UFW a state-authorized enforcement role (see the Conclusion). Under the settlement, the union may conduct “heat sweeps” and report violators of the standard to Cal-OSHA and the latter must respond promptly. Where onsite inspections are not possible, Cal-OSHA “may rely on evidence provided by the UFW and its Foundation to issue a citation” (14). Thus Cal-OSHA’s new partnership with the UFW paves the way for the state to serve as a model of how labor advocacy organizations can help compensate for the state’s diminished resources for labor standard enforcement.

Farmworker advocacy organizations like the UFW are particularly well-positioned to help the state protect farmworkers. Farmwork itself poses particular challenges to enforcement—challenges that Cal-OSHA itself has acknowledged. The fact that workers may change fields from one day to the next, and may no longer be present when agency staff may arrive to conduct inspections, is itself a persuasive argument for the need for decentralized enforcement. As Mike Meuter, the director of litigation for California Rural Legal Assistance, Inc., explained, the partnership between the state and these labor advocacy organizations helps boost the reach of state enforcement agencies, allowing them to serve as the state’s “eyes and ears” in communities that might otherwise escape oversight. Indeed, his labor advocacy organization reached a similar agreement with the state that allows CRLA staff to report labor code violations and testify in court. He said, “Back in late 90s we were finding and observing safety violations in the field and we’d submit complaints to OSHA and sometimes we’d get the response that OSHA offices are far away and they couldn’t get there before the crews moved… That’s where we said ‘we are your evidence. We’ll take the pictures, write the complaint, and we’ll show up at the hearing to testify.’” The state’s agreement with the UFW and CRLA, Inc. thus represents a decentralized and flexible approach to the enforcement of labor standards that may be particularly well-suited to the localized and constantly-shifting landscape of farmwork.

How can other states emulate this model? The UFW and the UFW Foundation have the right to access private fields to conduct “heat sweeps” because of the historic right California granted farmworkers to organize and bargain collectively with their employers. In 1938, the Fair Labor Standards Act granted all workers the right to organize without fear of employer retaliation. However, farmworkers and domestic workers were excluded from the Act. In 1975, then-Governor Jerry Brown signed the Agricultural Labor Relations Act, which restored this right to California’s farmworkers. The Act grants the union the ability to access farms provided it has furnished the employer a copy of a Notice of Intent to Take Access and has filed copies of the form with the Agricultural Labor Relations Board (15). Thus state laws protecting farmworkers’ right to bargain collectively help allow labor advocacy organizations to assume a greater role in ensuring workplace safety. These organizations can help augment the forces of underfunded state enforcement agencies, illustrating the important role of community-based organizations in combating the erosion of workers’ protections and contesting forces of neoliberal globalization (16). 

Endnotes
1. Van Horn, Carl E. 2013. Working Scared (Or Not At All): The Lost Decade, Great Recession, and Restoring the Shattered American Dream. Lanham, MD: Rowman & Littlefield Publishers: 52; McGarity et al. 2010.
2. OSHA 2015. FY 2015 Comprehensive Federal Annual Monitoring and Evaluation (FAME) Report. San Francisco, CA: U.S. Department of Labor OSHA Region IX: 3.
3. McGarity, et al. 2010: 6.
4. McGarity et al. 2010.
5. Brown, Garrett. 2014. “One Year After the Coup: Who’s Running the Show at Cal-OSHA?” http://insidecalosha.org/Inside%20Cal_OSHA%20-%20Who's%20running%20Cal_OSHA%20(R).pdf, accessed July 1, 2015
6. Ibid.
7. AFL-CIO 2012: 4. McGarity et al. 2010: 15-16.
8. OSHA Daily. 2015. “OSHA Chief: State OSHA’s Budget, Staffing Increase Should Ameliorate Feds’ Concerns.” http://www.peer.org/assets/clips/OSHA_DAILY-Cal_OSHA_Chief-State_Osha_Budget.pdf, accessed August 2, 2016.
9. OSHA 2013: 3.
10. OSHA Daily 2015.
11. Sum and Gherga 2015.
12. Meyer, Jacob and Robert Greenleaf. 2011. Enforcement of State Wage and Hour Laws: A Survey of State Regulators. New York, NY: National State Attorneys General Program. http://web.law.columbia.edu/sites/default/files/microsites/attorneys-general/files/Wage%20and%20Hour%20Report%20FINAL_0.pdf. 
13. OSHA 2015. Adding Inequality to Injury: The Costs of Failing to Protect Workers on the Job. Washington, DC: US DOL OSHA.
14. Lafer, Gordon. 2013. The Legislative Attack on American Wages and Labor Standards, 2011-2012. EPI Briefing Paper # 364. Washington DC: Economic Policy Institute.
15. Memorandum of Understanding: UFW and Cal-OSHA. http://www.ufw.org/pdf/BautistaSettlementSummary.pdf, accessed July 1, 2015.
16. Little, Bryan and Carl Borden. 2015. “Commentary: Rules Govern Union Access to Farms for ‘Heat Sweeps.’”  Ag Alert. July 25, 2015. http://www.agalert.com/story/?id=8565, accessed August 3, 2016.
17. Stuesse, Angela. 2016. Scratching Out a Living: Latinos, Race, and Work in the New South. Berkeley and Los Angeles: University of California Press: 164-166.