Report details widespread Cal/OSHA violations in food industry

California food industry employers racked up more than four times the number of coronavirus violations than all other industries combined – but paid less in overall penalties than comparable industries, according to a new report.

The report, “California Food Production Employer Misconduct Leads to Elevated Risk of COVID-19 Hazards for Food Production Workers,” was released on Tuesday by the California Institute for Rural Studies.

The study analyzed 367 violations committed by food production employers based on data from the California Division of Occupational Health and Safety between April 2020 and August 2021.

Researchers found a high volume of serious violations – those that constitute likely risks of death or harm to workers – as well as a widespread failure of employers to enforce Cal/OSHA COVID-19 regulations such as face masks and physical distancing as well as employer failure to notify local and state agencies about COVID-19 outbreaks.

According to their analysis of Cal/OSHA data, California food production employers had four times as many citations for violating COVID-19 guidelines than employers in all other California industries combined.

Yet, they paid significantly lower penalties than other industries with a high volume of citations.

The average citation for food production employers was just over $20,000, a sum that is “not discouraging or preventing employers from violating labor and occupational health and safety laws,” Dvera Saxton, a researcher with CIRS and Cal State University Fresno professor, said during Wednesday’s news conference.

“The findings of the report about food production workers in California are consistent with what we know about food production workers around the country,” said Suzanne Adely, co-director of Food Chain Workers Alliance, during the news conference on Wednesday. “Food production workers face enormous challenges and exploitation in the workplace.”

The report also suggested several ways to reform the health and safety oversight bodies and expand protections for food industry workers.

“While it’s convenient and reassuring to believe that the pandemic is over,” Saxton said, “we know that it will continue to impact the most vulnerable communities, and that includes food production workers.”

A high volume of ‘serious’ violations among food production employers

An analysis of Cal/OSHA inspections found that a majority of food production employer inspections, or 269 of the 326, resulted in serious violations. Serious violations include those that constitute likely risks of death or harm to workers. “However, this category contains caveats that make it easier for employers to contest complaints,” said the report. Only 57 employers out of 326 did not have any serious citations.

Nearly one-third, or 91 of the 326 employer inspections between April and December 2020, included regulatory citations. Regulatory citations include employer failure to obtain required permits, to post required health and safety information, maintain formal health and safety records, and to report work-related injuries, illnesses, and or deaths to Cal/OSHA – and in the case of COVID-19, to county public health authorities.

“It is concerning that more than one-fourth of Food Production Employer inspections revealed alleged withholding of important information needed to prevent the spread of COVID-19 among other workers onsite,” the report stated.

The “most common and egregious” employer violations of federal and Cal/OSHA COVID-19 rules, according to the report, were in two categories: failure to enforce Cal/OSHA COVID-19 regulations and failure to notify local and state agencies about outbreaks and when COVID-19 related injury, illness, or fatality of an employee had occurred.

Despite having more violations overall, food production employers paid lower fines for their violations compared with other highly cited industries, the report showed.

The average penalty per food production employer was $22,473 as of August 2021. Meanwhile, the average penalty for public agencies, a sector that includes federal and state prisons, was over $40,000, and the average penalty for assisted living, elder, and child care facilities was $30,000.

“The fines do not necessarily align with the severity of the violations,” Saxton said. Employers can negotiate a settlement with Cal/OSHA or formally appeal and contest findings using “very powerful legal teams” through the court process, said Saxton, which often results in cheaper final penalties.

The discrepancy between initial and final penalties is a “cause for concern,” according to the report. Researchers found that employers secured a 42% reduction of the total initial penalty.

Researchers pointed out that the highest fines were approximately $300,000 for a number of “willful, serious” violations tied to poultry plant Foster Farms and their third-party temporary staffing agencies.

The company, as well as its temp agencies, had deadly outbreaks at both the Fresno-based plant at Belgravia and their Livingston-based plants in 2020 and early 2021 and was fined $3.8 million by the California Labor Commissioner’s Office earlier this year. Meanwhile, the company’s revenue reached $2.5 billion in 2020, according to Forbes.

Foster Farms couldn’t be immediately reached for comment. Western Growers Association and California League of Food Producers couldn’t be immediately reached for comment.

Pete Maturino, agriculture director of the United Food and Commercial Workers union, said he’d like to see laws that “send a message to employers that if you break the law, you could be subject to losing your business license.” Instead, he said, “they get a slap on the wrist.”

Were California food industry COVID-19 violations ‘grossly’ underestimated? Research says it’s ‘likely’

Researchers say the true number of workplace health and safety violations is likely much higher in the food production system, considering that the industry comprises an estimated 800,000 agricultural workers and 7,000 food manufacturing workers in California alone.

“Due to the well-documented severity of the pandemic for food production workers, these numbers (in the report) likely grossly underestimate the numbers of violations within the food production industry,” Saxton stated in a news release.

Furthermore, the Cal/OSHA violations “do not align with official data about community spread, hospitalizations, deaths, and outbreak hotspots that were concentrated in regions of California with significant numbers of Food Production Workers,” said the report.

Last October, the USDA confirmed meatpacking factories were a “major catalyst” to the spread of COVID-19 during the early months of the global pandemic. Similarly, researchers at Columbia University found that 6 to 8% of total COVID-19 deaths were attributed to livestock processing plants.

“Relying on employers, who are not neutral or disinterested actors, to report injuries, illnesses or deaths resulting from violations (willful or not) of occupational health and safety policies results in artificially depressed numbers,” the report stated.

Researchers said that “labor market intermediaries,” such as temporary staffing agencies and farm labor contractors, are an overlooked part of the problem.

“Collecting data on these employers is challenging because of how the federal government classifies food workers, especially those on guest-worker visas, such as H-2A and H-2B visas, and those that are contracted or subcontracted into the jobs,” researchers found.

“This obscures a lot of temporary workers, contracted workers, including those employed by foreign labor contractors,” said Saxton.

State and local governments also played a role in reducing transparency around outbreaks, the report said.

“In Fresno County, the Department of Public Health tracked workplace illnesses due to COVID-19 but did not publicly disclose this information because they claimed they lacked the staff and capacity to fully analyze this data and that they wanted to work collaboratively with businesses to address problems,” the report stated.

Despite multiple attempts by some state legislators to enact laws that would have required the California Department of Public Health to report COVID-19 outbreaks by workplace location, the legislation never garnered the necessary support.

Adely said that, ultimately, the relationship between the food production industry and local government hurts workers. “This is labor that exists under a corporate-driven food system whose profits come first and whose interests are protected by local, state, and national governments,” she said.

Researchers concluded that “flaws in data collection at all levels of government” led to a lack of “complete, accurate, reliable data about those who remain invisible and disposable.”

Report calls for improved transparency, language competency, increased protections

The CIRS report outlined a number of recommendations on how to protect food workers for pandemic-related concerns and beyond. Some of the recommendations are to:

Strengthen, expand, and diversify Cal/OSHA: Hire and train more regionally-based, culturally and linguistically competent staff within Cal/OSHA and related county and state agencies

Conduct more frequent inspections: Increase the number of Cal/OSHA and public health inspectors as well as inspections within the food production industry

Create new state and federal regulatory bodies dedicated to vulnerable food workers: Researchers said they’d like to see the creation of new state and federal occupational health and safety agencies that prioritize the needs and concerns of Black, Indigenous, people of color and immigrant workers, including a special division dedicated to food production workers given their vulnerability and the high number of violations in the food production industry

Expand and strengthen protections for food production workers, including paid sick leave and precautions against outbreaks and surges

Increase transparency and public accessibility to Cal/OSHA data

Grant food production workers professional status dignified livable salaries, safe, hygienic, and respectful working conditions, and consideration as fellow human beings that they deserve

Stronger enforcement of existing labor laws. “The biggest problem in all laws is the lack of enforcement,” said Maturino of the UFCW

“If this report does not signal to us that something is wrong,” Sarait Martinez, executive director of the Binational Center for Fresno-based nonprofit, Indigenous Oaxacan Community Development (CBDIO), said in a news release, “then we must create a different structure, a new way of addressing and responding to these problems that essential workers face and have faced for decades.”

This story was originally published July 7, 2022 3:08 PM.