100 years of no workers’ comp

Kent Paterson

Frontera NorteSur

For the nearly 100 years New Mexico has been a US state, farm and ranch workers have been excluded from the state workers’ compensation system.  The labor force was systematically left out of legislation passed in 1917, 1937, 1973 and 1990. Despite the exclusion, contributions to the state administrative system are deducted from workers’ paychecks. Most recently, a 2009 bill mandating workers’ compensation coverage for agricultural workers and sponsored by State Rep. Antonio Lujan, D-Doña Ana, failed to pass the State House’s Business and Industry Committee, where it was tabled by a vote of 10-2.

But as New Mexico prepares to kick off its Centennial of Statehood celebration in 2012, farmworker advocates are optimistic the people who work the land and put food on city slickers’ tables will soon have workers’ compensation insurance.

In a major victory for farm labor activists and their supporters, New Mexico District Judge Valerie Huling ruled this month that the farm and ranch exclusion was unconstitutional. According to the judge, “…the agricultural industry is the only industry allowed to shift the burden of its injured workers from the industry to the taxpayers.” The omission, Huling ruled, takes place in an arbitrary manner “that lacks reasonable basis in fact.”

“This is going to lead to a safer work environment for all farms and dairies in New Mexico,” said Maria Martinez, staff attorney for the Albuquerque-based New Mexico Center on Law and Poverty (NMCLP), which sued the New Mexico Workers Compensation Administration on behalf of several plaintiffs, Taxpayers, Martinez said, will then no longer have to foot the bill for indigent workers injured on the job.

According to the NMCLP, 33 states plus the District of Columbia, Puerto Rico and the Virgin Islands require mandatory workers’ comp coverage for most agricultural sector workers.

Representing three plaintiffs who worked in different dairies across the state, Joe Griego, Eloy Vigil and Ramon Molina, the NMCLP filed suit against the New Mexico Workers Compensation Administration after the latest legislative attempt to cover agricultural workers died in Santa Fe in 2009. Other plaintiffs in the lawsuit included the non-profit organization HELP-New Mexico and Sin Fronteras Organizing Project, an El Paso-based group that represents workers who labor in southern New Mexico fields.

Court documents told of severe personal hardships encountered by the plaintiffs. In two instances, the men were attacked by bulls while in the third the plaintiff was kicked by a cow. The three plaintiffs claimed to have subsequently experienced extreme financial difficulties due to their inability to work and pay for medical attention; one of the plaintiffs was transported to Texas for treatment because a hospital in Portales was not equipped to attend his injury.

New Mexico Workers Compensation Administration Director Ned Fuller said his office had to “look at” Judge Huling’s legal decision to determine the state’s next step. Fuller said he was displeased with some of the legal agreements between the state and attorneys for the plaintiffs that framed the case as it went to trial.

“We think they stipulated some facts that weren’t helpful … and didn’t really offer any in our defense,” Fuller said. Reached by phone just prior to the Christmas holiday, Fuller said he had not spoken with either the governor’s office or the state attorney general’s office about the New Mexico District Court judgment.

The state official added that he did not expect a decision on how to respond to Judge Huling’s ruling before the end of the year.

The Workers Compensation Administration was defended by the state attorney general’s office. Current State Attorney General Gary King comes from a prominent ranching family that has been influential in New Mexico politics. His father, the late Bruce King, served three terms as New Mexico governor.

Apart from the personal dramas of the three plaintiffs, court records in the workers’ comp case shed new light on the history and treatment of a mainly Mexican immigrant labor force in New Mexico; the nature of farm, ranch and dairy work; and the economic evolution and structure of New Mexico agriculture in the 21st century.

According to the documents, the average value of agricultural production in New Mexico is currently around three billion dollars, or 1.45 percent of state production. Although 20,000 farms exist in the Land of Enchantment, only 10 percent of them provide a primary income for their owners. Almost the same number — 1,973 farms — employ three or more workers and account for 83 percent of the state’s farm and ranch labor force.

“The nature of agriculture in New Mexico has changed since 1990, becoming industrialized, with larger and larger farms dominating the production and sale of agricultural products in the state,” Judge Huling wrote.

The lawsuit examined the dairy boom of the late 20th century. With an average of 2,300 cows per dairy, New Mexico ranks as the nation’s ninth largest milk producer. Of the state’s 272 dairies, 150 account for 99 percent of the sales. Now New Mexico’s number one agricultural commodity, the dairy industry employs approximately 3,500 workers and generates in the neighborhood of one billion dollars in producer income every year.

The number of dairy cows in New Mexico more than quadrupled from the 81,000 counted in 1990 to the 338,000 reported in the 2007 Census of Agriculture. In that year, the state dairy herd outnumbered the human population of Las Cruces, Deming, Rio Rancho, and Santa Fe combined. Move over green chile, roadrunners and Smoky the Bear.

In making her decision, Judge Huling accepted numbers that reported the net profit of New Mexico farming and ranching operations fluctuated from a low of $422,979,000 in 2002 to a high of $900,887,000 in 2009. Profits then jumped to $1,020,831,000 in 2010. Meanwhile, the average annual amount paid out in wages during the last eight years was calculated at $231,250,000.

According to Judge Huling’s opinion, seasonal crop workers earn between $6-7,000 per year while year-round dairy workers bring in $18,000 annually. Although 29 percent of agricultural employers were found to voluntarily cover their workers with  workers’ comp, only one percent of agricultural workers had health insurance.  Representatives of the state agriculture industry have argued that it is unnecessary to cover their employees under workers’ compensation since farm employee medical insurance policies performed the same function.

According to plaintiffs’  lawyer Maria Martinez, such policies typically cap payouts at $5,000, even in situations in which an injured worker racks up “tens of thousands” in medical bills. “It’s nowhere close to the benefits workers’ comp gives to the workers,” Martinez said.

In terms of occupational health and safety, farm and ranch workers are sometimes exposed to toxic chemicals, suffer spider and snake bites, sweat in extreme heat, slip in the mud and experience repetitive motion injuries, among other risks. No OSHA standard for egronomic injuries currently exists, according to the lawsuit. Finally, no reliable set of statistics tracks the injuries of New Mexico agricultural workers

“There’s no place in the state that is collecting that information, at least that we are aware of,” said Gail Evans,  the NMCLP’s legal director.

The workers’ comp case opened a lens into farmworker history dating back to the late 1800s, when the New Mexico Bureau of Immigration promoted the availability of a Mexican labor force as an incentive to outside investors. Recruiters were quoted promoting the presence of a “peasant” labor force made up of “quiet, orderly, teachable people.”

As portrayed by the plaintiffs, 19th century working conditions persist in the 21st century. Children as young as 12 years of age are permitted to do some work, and no state (or federal) collective bargaining law for farmworkers is on the books. Judge Huling found that farmworkers and their advocates had suffered retaliation for complaining and organizing around working conditions.

In litigating the lawsuit, the State of New Mexico contended that excluding agricultural workers from workers’ comp simplified the overall system because it was hard to keep tabs on a workforce that moves from employer-to-employer and, in deference to farmers and ranchers, spared a struggling economic sector from an extra cost in tough times.

Judge Huling rejected the arguments. According to the judge, requiring coverage for an estimated 10,000 eligible workers would cost between five and seven million dollars per year, or less than one percent of the agricultural sector’s annual profit.

“The cost of workers’ compensation insurance for the agricultural industry is reasonable and comparable to that of other industries,” Judge Huling wrote. Increased claims on the system “would likely increase by less than one percent,” she maintained.

Judge Huling’s employer cost estimate differed wildly from one prepared by a New Mexico State University economist who pegged the comparable annual figure at $90 million; the economist’s numbers were used in the New Mexico State House to shoot down State Rep. Lujan’s bill in 2009, according to court records.

For now, it’s unclear if an appeal or other legal/legislative challenge to Judge Huling’s decision will emerge. “This is eventually going to be the law of the land in New Mexico,” predicted NMCLP attorney Maria Martinez.  “We’re confident it’s going to be successful even if it’s appealed.”

Beverly Idsinga, executive director of the Dairy Producers of New Mexico, said her organization was “still reviewing” the ruling and could not comment on it. Idsinga told Frontera NorteSur that she expected the lawsuit to be a topic when dairy farmers meet with other members of state agricultural associations on the first day of the 2012 State Legislature when it convenes in the state capital of Santa Fe next month.

Frontera NorteSur: on-line, U.S.-Mexico border news
Center for Latin American and Border Studies
New Mexico State University
Las Cruces, New Mexico

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