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December 16, 2010

Will New Mexico farm workers finally be covered by workers comp?

Kudos to Workcompcentral for reporting on the struggle to provider workers compensation coverage to farm workers in New Mexico. Failure to cover farm workers is one of the scandals of the current workers comp system in the country (Many states do fortunately cover these workers).

Public interest lawyers filed suit to declare the lack of coverage in New Mexico as unconstitutional.

Read the Workcompcentral article below. Republished with permission, www. workcompcentral.com, a workers' compensation subscription news service.

Farm Labor Comp Exemption Still Being Targeted: Top [2010-12-16]
By Greg Griggs, Editor

A New Mexico lawmaker said Wednesday he's wrestling with whether to reintroduce a bill he's backed for the past two years with no success — a move to require the state's agricultural industry to provide workers' compensation insurance to farm workers.

Rep. Antonio Lujan, D-Las Cruces, said he may decide to hold off on bringing up the bill next month when the Legislature reconvenes in Santa Fe. The bill would apply to farms with three or more non-family employees.

"Truthfully the best we could hope for would be a debate on the House floor and that's as far as it would go," Lujan said. "But I am determined. If they go the litigation route and win, they would still have to provide coverage."

Lujan was referring to a lawsuit filed by the New Mexico Center on Law and Poverty in August 2009 on behalf of several workers, including two who are U.S. citizens, who claim they have gotten little or no assistance for medical bills or lost wages after being disabled by on-the-job injuries.

The lawsuit argues that the state Workers' Compensation Act violates the equal protection clause of the state constitution by excluding farm workers from benefits. The case remains in the discovery phase.

Currently, the state's workers' comp system excludes farm and ranch workers, domestic servants, real estate salespeople and workers in companies with fewer than three employees.

Just last month, the Advisory Council on Workers' Compensation and Occupational Disease Disablement voted to support the Lujan bill to remove the farm worker exclusion. This week, the council voted not to endorse plans to remove the exemptions for domestic workers and real estate agents.

The Center on Law and Poverty, a major backer of Lujan's bill, persuaded council members by asserting that removing the exclusion for farm workers would apply to less than 10% of the state's nearly 21,000 farms. The 1,973 farms that employ three or more people represent 83% of the farm employees in the state and the proposal would add only about $10 million in annual insurance costs.

Three major parts of the agriculture industry have ample cash to cover the costs, according to official statistics gathered at the center. Dairy ranchers had $1.4 billion in cash receipts in 2008; cattle ranchers saw $1.4 billion in gross income two years ago; and chile growers had an estimated crop of more than $57 million last year.

"The numbers seem clear. They should be able to afford to do this like every other employer in our state," said Gail Evans, legal director of the center. "There's been discussion why the restaurants have to provide workers' comp to their employees, but giant diaries do not. It's really nonsensical."

In estimates from two major workers' comp insurers — New Mexico Mutual and Southwest Casualty — the center said costs for insuring a typical farm worker would range from $7.02 to $8.32 per $100 of payroll in the voluntary market. Employers in the assigned risk pool would be charged about $11.32. For dairy workers the rates would be $4.81 to $5.70 per $100 of payroll. Cattle workers would pay the highest rates, as much as $18.12 per $100 for those in the assigned risk pool.

Caren Cowan, executive director of the New Mexico Cattle Growers Association, said those rates are optimistic at best. One ranch that voluntarily offers comp coverage to its workers is paying a rate of about $29 per $100 of payroll, she said.

"The way the system works in New Mexico, everybody would first go into an assigned risk pool and the rates would be the highest amount possible," she said.

Cowan cites a study conducted by New Mexico State University researchers on the topic, which estimated insurance costs just for the cattle industry would be closer to $11.5 million annually. When considered as a percentage of profit, the study concluded that the average profit per cow is $27.15, but that workers' comp costs would eat up $24.98, cutting profits to $2.17 per cow.

"Three to five years at those rates and people would be out of business," Cowan said.

And most ranchers, who generally provide food, lodging and transportation for workers, also assume the cost of any medical treatment required by an accident on the ranch, according to Cowan.

Beverly Idsinga, executive director of the New Mexico Dairy Producers, said the more than 150 dairies in the state are already struggling with low milk prices and will continue to oppose a move to increase their costs.

"The price of feed is going up and the price of milk is going down," Idsinga said. "We already have dairies leaving the state because of the pricing issue."

While only a few of the large dairies provide workers' compensation to their workers, Idsinga said all dairy operations have general liability coverage to provide for workers in the case of a catastrophic injury.

Charlie Marquez, a lobbyist for the New Mexico Chile Association, said the liability insurance issue extends to chile farms and provides adequate protection for laborers.

"We don't understand the need to go to the workers' comp system," Marquez said. "Farmers are, by and large, very responsible and provide for the care of their employees."

To read a draft copy of the Lujan bill, click here: http://www.workcompcentral.com/pdf/2010/misc/nmfarm12162010.pdf.

December 13, 2010

Web of Mass. employer abuses of immigrant worker rights

The Boston Globe has reported on the shoddy practices of a Massachusetts pizza restaurant chain, focusing on a case involving a Brazilian worker (eastern Massachusetts has a very high number of Brazilian immigrants. Here is the story:

Upper Crust said to face probe by AG

By Jenn Abelson Globe Staff / December 10, 2010

The Upper Crust pizza chain is coming under scrutiny by the Massachusetts attorney general’s office for potential violations of the state’s minimum-wage and other workplace laws, according to an official briefed on the matter.

This inquiry comes days after the Globe reported allegations from former Upper Crust employees that the Boston pizzeria exploited Brazilian immigrant workers as it rapidly expanded over the past decade. Former employees have accused Upper Crust and owner Jordan Tobins of taking back thousands of dollars in overtime payments that were ordered by the Department of Labor and failing to pay minimum wage.

“We have nothing to hide. We welcome any investigation,’’ said George Regan, a spokesman for Upper Crust.

“The violations in this case are particularly egregious, and we are pleased to see another agency looking into this as well,’’ said Shannon Liss-Riordan, one of the lawyers representing former workers who filed a lawsuit in July against Upper Crust.

The official briefed on the matter requested anonymity because the inquiry is not public.

Upper Crust, founded in 2001, is being examined by at least three state and federal agencies: the state attorney general’s office, the Department of Labor, and the Massachusetts Commission Against Discrimination.

Over the past 10 years, dozens of men have left the impoverished village of Marilac in southeastern Brazil and risked their safety in treacherous, illegal border crossings to make their way to Boston. They have come with dreams of making a better life by working at an Upper Crust shop and sending money to their families in Brazil to buy homes, build businesses, and pay bills.

Marilac provided a steady supply of cheap, dedicated labor for Upper Crust, and the arrangement worked — until ambition tore it apart.
As the chain swiftly expanded to 17 stores, the immigrants took on longer hours — often exceeding 80 hours per week — without overtime pay. The Brazilian employees, who usually worked as cooks and delivery drivers, said they were also denied raises and bonuses that had once made the jobs more palatable.

One former Brazilian worker, Marcia Almeida Sousa, thought the company went too far after she was involved in a car accident while delivering pizza. The crash left her with a cervical spine ligament injury and cervical sprain.

Four days after the October 2008 accident, Tobins asked Sousa to meet with him and his attorney. They wanted her to sign a paper stating she was not working when she was hurt, according to a copy of a complaint Sousa filed with the Massachusetts Commission Against Discrimination. She refused and filed a claim for workers’ compensation.

Upper Crust managers and employees began to harass her, and in March 2009, she was fired, the complaint alleged.

“They never asked me ‘Are you OK,’ ’’ Sousa wrote in an e-mail to the Globe. “They didn’t like that I had workers’ compensation.’’

Barbara Green, a spokeswoman for the Massachusetts Commission Against Discrimination, said, “This complaint is still being actively investigated.’’
Upper Crust “is vigorously defending itself against the allegations,’’ Regan said. Sousa received worker’s compensation, he said, but did not get unemployment benefits because she left of her own accord.

Sousa and other immigrant employees eventually took their complaints about working conditions to the US Department of Labor. It launched an investigation last year and ordered Upper Crust to pay nearly $350,000 to about 120 employees for uncompensated overtime.

But Upper Crust demanded the immigrants surrender the government-ordered checks or lose their jobs, according to interviews with nine former employees. Two former cooks, in a lawsuit filed in Suffolk Superior Court, have accused the Boston pizzeria of taking back thousands of dollars in overtime payments by slashing their wages.

One of the plaintiffs, Valdeir Pereira Pinto, started earning $455 for working 80 hours a week, according to copies of his paychecks and timecards submitted as part of the lawsuit. That is about $5.70 an hour, or $2.30 below minimum wage. Pinto said Upper Crust deducted more than $8,000 over several months — the full overtime payment he received — and then fired him.

Upper Crust has denied these allegations. “This is not true,’’ Regan said. “Everyone who received an overtime check cashed it.’’
Tobins, in an e-mail this summer, said Pinto and a second plaintiff in the lawsuit, Cleverson Batista, were not entitled to overtime under the law because they were managers, not hourly workers. He described the men as “disgruntled ex-employees.’’

After Upper Crust began reducing wages last fall, Carla Pantuosco, who served as a manager at the shop on Commonwealth Avenue in Boston, said she received weekly complaints about paycheck issues from the Brazilian kitchen workers.

“Every week it would be this new problem. Everybody in the front of the house was paid. It was always the back of the house,’’ said Pantuosco, who left shortly after Pinto was fired. “The kitchen staff got frustrated. It wasn’t a good situation. I couldn’t stand it.’’

The Department of Labor has an “open, ongoing investigation’’ of the Upper Crust chain, but spokesman John M. Chavez would not disclose details.
Ross Feinstein, a spokesman for Immigration and Customs Enforcement, said the department “neither confirms nor denies the existence of an ongoing investigation’’ of Upper Crust.

Jenn Abelson can be reached at abelson@globe.com.