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Winning Workers' Compensation for Farmworkers

By Gail Evans

With the continuing hostility to civil rights lawsuits in federal court, advocates can turn to state courts to seek justice, putting to test the civil rights protections in our state constitutions. For example, advocates won a long battle to have New Mexico’s farm and ranch laborers—the men and women who work in the fields, milk the cows, and tend to the cattle—included in the New Mexico’s Workers’ Compensation Act (see Amended Opinion and Order, Griego v. New Mexico Workers’ Compensation Administration, No. CV-2009-10130 (N.M. Dist. Ct. Bernalillo Cnty. Dec. 27, 2011). After losing a lawsuit to change the law in federal court some fifteen years ago, our New Mexico Center on Law and Poverty began a new campaign to end that discrimination. We attempted to negotiate a change with the agricultural industry and tried twice to change the law at the state legislature. When none of these approaches worked, we sued in state court under the state constitution; we claimed that excluding farm and ranch laborers from workers’ compensation violated the state constitution’s equal protection clause. We won the suit and are now pushing the state to enforce the new law. As legal services attorneys who do not rely on attorney fees, we have the luxury of pursuing justice in state courts under state laws, which, while offering stronger protections than federal laws, do not award legal fees and thus are often not used by private civil rights attorneys. Our victory is another blow to state laws that unjustly discriminate against vulnerable groups of people.

Farm and Ranch Laborers Under New Mexico Law

FarmworkerOur work began when lawyers from New Mexico Legal Aid asked the New Mexico Center on Law and Poverty to work to change the law that excluded farm and ranch laborers from mandatory workers’ compensation coverage. Legal aid attorneys were regularly seeing men and women who had been injured while working in the fields but had no legal recourse to medical care or lost wages since their injuries were not due to negligence and they were not covered by workers’ compensation insurance. Under New Mexico’s Workers’ Compensation Act, employers of three or more employees must cover their workers with workers’ compensation so that workers who are injured on the job are entitled to lost wages for the time they miss work and full medical coverage for treatment of the injuries (N.M. Stat. Ann. § 52-1-6 (2012)). However, “farm and ranch laborers” were excluded from mandatory coverage (id.). As a result, New Mexico’s poorest and most vulnerable workers were not covered, and the agricultural industry was treated differently from all other industries in the state. Working in the dairies or picking green chile, onions, and pecans in the fields, the men and women, who are frequently injured doing some of the most dangerous jobs in the country, were not covered. They had no health insurance either. When they were injured at work, they had little or no access to medical treatment and were not entitled to any lost wages. These workers and their families, already extremely poor, could be completely devastated by an accident at work.

Our initial research showed that changing this law in the courts would be an uphill battle. No other state lawsuit had been successful, except for one in Texas in the 1970s (see Final Judgment, Delgado v. Texas, No. 356,714 (Tex. 147th Jud. Dist. March 7, 1984)). Complicating matters, in the mid-1990s, farm and ranch laborers lost a federal suit to end this discrimination against agricultural workers; they claimed that the exclusion was a form of racial discrimination in violation of the federal equal protection clause (see Memorandum Opinion and Order, Hernandez v. Stuyvesant, No. 93-887-HB (D.N.M. Aug. 14, 1996)). The federal district court dismissed the case after finding that the plaintiffs failed to prove intentional racial discrimination and that the exclusion survived the federal rational-basis test; the state simply had to explain how the law was rationally related to a legitimate governmental interest. The state argued that farm and ranch laborers were excluded from workers’ compensation for two basic reasons: they were different from other workers due to their migratory work, and the agricultural industry deserved protection because it operated at a lower profit margin and could not set its own prices and thus could not afford the insurance. The judge held that the state’s asserted reasons were rationally related to the state’s purported interest in protecting the agricultural industry, and the exclusion survived.

But federal court is not the only place to file civil rights lawsuits. In many jurisdictions, the better option may be state court. By relying on only state law and the state constitution, plaintiffs can prevent defendants from removing the case to federal court. Because states are free to interpret their constitutional protections more broadly than their federal counterparts, even claims that look hopeless in federal court may be winners in state court.

New Mexico has a rich and proud history of interpreting the state constitution to guarantee greater protections than the federal constitution. For example, the New Mexico Supreme Court has “recognized that the Equal Protection Clause of the New Mexico Constitution affords ‘rights and protections’ independent of the United States Constitution” (Breen v. Carlsbad Municipal Schools, 120 P.3d 413, 418 (N.M. 2005)). New Mexico’s equal protection law protects any group determined to be a “sensitive class,” that is, “a discrete group … subjected to a history of discrimination and political powerlessness based on a characteristic or characteristics that are relatively beyond the individuals’ control such that discrimination warrants a degree of protection from the majoritarian political process” (id. at 420–21). To be “sensitive,” “the group need not be completely politically powerless, but must be limited in its political power or ability to advocate within the political system” (id. at 419–20).

When a statute affects a “sensitive” group, New Mexico courts apply intermediate scrutiny and the burden is on the state to prove that the discrimination is substantially related to an important government interest (id.). However, even if plaintiffs end up with the rational-basis test, New Mexico courts apply a rational-basis test with teeth (see Trujillo v. City of Albuquerque, 965 P.2d 305, 314 (N.M. 1998)). Unlike in federal court, where the state simply needs to put forward a reason to justify discrimination, in New Mexico courts, the state’s purported reasons must be supported by evidence in the record. In other words, the state cannot just assert reasons for discriminating against a group; instead the state must point to facts in the record to show that these reasons are legitimate (see Corn v. New Mexico Educators Federal Credit Union, 889 P.2d 234 (N.M. Ct. App. 1994)). Plaintiffs can then develop and present evidence that the state’s assertions are inaccurate and that the discrimination is not based on any rational reason.

In our case, the state could not simply assert that the agricultural industry needed protection from paying for workers’ compensation coverage or that agricultural workers would be difficult to cover because they were migratory. The state would have to present evidence in the record to support its reasons. The more we learned about agricultural economics, the agricultural work force, and the purpose of workers’ compensation, the more we understood that excluding farm and ranch laborers was irrational and that the state would not be able to point to factual support for any of its asserted reasons for the exclusions.

State Legislative Efforts

Before filing our civil rights suit in state court, however, we tried to change the law at the legislature, but we ran into the notoriously strong agricultural lobby, especially the dairy industry’s lobby. New Mexico has the largest dairies in the country, and milk is the largest agricultural commodity. Yet dairy has managed to portray itself as small, financially tenuous “ma and pa” operations when, in fact, New Mexico’s 150 dairies average over 2,100 cows each. Besides carving themselves out of the workers’ compensation law, New Mexico’s dairies have lobbied themselves out of the state minimum wage law, certain state tax laws, and the occupational safety and health standards that most other employers must follow.

When we first went to the legislature in 2007, our bill was quickly killed in committee, but we managed to pass a measure establishing a task force to consider whether and how the exclusion of farm and ranch laborers from workers’ compensation should be considered. The measure called for the task force to consist of three representatives each from the agricultural industry, the insurance industry, and agricultural workers. We worked with the task force for over a year. After members resolved unanimously that, in principle, all workers should have coverage if they were injured on the job, the agricultural industry was unwilling to budge on mandatory workers’ compensation. We went back to the legislature, again without the support of the industry, but this time with strong and important allies and more information about how workers’ compensation functions in the agricultural industry, including the actual costs of covering agricultural workers.

Our presentation for the legislature in 2009 argued why farm and ranch laborers should be included in workers’ compensation: that it would cost only 1 percent (about $10 million annually) of the industry’s profit, that it would benefit the public to have agricultural workers covered, and that this change in law would affect only 10 percent of the farms in our state—those with three or more workers—but that these 10 percent employed over 90 percent of the agricultural workers. To augment the presentation, we produced a short video of the plight of agricultural workers in New Mexico. We had laid the groundwork before the legislative session, and we won the support of the speaker of the House and other legislators in both chambers. A large coalition of organizations—labor unions, the Catholic Church, and small farmers—supported our efforts to amend the law.

But our efforts were not enough in the face of New Mexico’s agricultural lobby. Representatives of the industry presented false evidence that eliminating the exclusion would put it out of business, that covering agricultural workers would cost about $80 million, and that the coverage was unnecessary because the industry already had liability policies that were just as good as workers’ compensation. The industry flooded legislators’ offices with phone calls from small farmers and ranchers who were told incorrectly that they would be included under the statute change. As we fought back, we were threatened with losing our state funding, and, in fact, our opponents proposed an amendment to the state budget bill to cut our share of the state’s Civil Legal Services Fund. Our supporters in the legislature and others outside it, including two justices of the New Mexico Supreme Court, rallied with us to beat the proposal, but the bill to amend the Workers’ Compensation Act was roundly defeated. (Two years later a legislator who attacked our funding mounted a credible threat to the entire civil legal services appropriation unless the New Mexico Center on Law and Poverty withdrew from it, and we we did.)

State Court Litigation

When the facts are on your side but the politics are not, a courtroom can seem a friendly place to make social change. By the time we filed suit in state court, we had developed enough evidence to know that the state had no rational justification for excluding farm and ranch laborers from workers’ compensation. We knew that if a judge ever looked at the facts and applied New Mexico’s equal protection law, we would win.

We sought the assistance of two national organizations, the National Center for Law and Economic Justice and the Sargent Shriver National Center on Poverty Law, both of which joined as cocounsel and were a tremendous help to us throughout the case; they had litigation and civil rights expertise to augment our factual and local legal knowledge. These organizations, combined with a local civil rights attorney with a history in farmworker litigation, made us a very strong legal team. We obtained funding from the Public Welfare Foundation, an organization committed to seeing our work through from beginning to end and another crucial partner in this project.

Finding plaintiffs was not easy. Many live in “company towns” and have family who work in agriculture. Some men joined the case and then backed out for fear of retaliation. Even those who were not able to work anymore because of their injuries feared that other members of their family would face retaliation if they joined the lawsuit.

Two organizations that represent farmworkers in New Mexico—Sin Fronteras Organizing Project and HELP-New Mexico—agreed to serve as plaintiffs in the case, along with three dairy workers, all of whom had been seriously injured at work and did not have workers’ compensation coverage. Two of our three individual plaintiffs were so badly injured that they knew they would never be able to work in agriculture again. Another plaintiff wanted to pursue the case at any cost in spite of the dangers. All of our plaintiffs were motivated to fight for justice and to make sure that agricultural workers in the future had access to workers’ compensation.

Joe Griego, the lead plaintiff in the lawsuit, was gored by a bull while trying to milk cows at a dairy in New Mexico. He was being paid $65 a day, putting in six days a week, ten hours a day, a common schedule for milkers in New Mexico. His employer did not offer health insurance or sick leave. The bull attacked Griego as he was trying to separate it from the cows to be milked, throwing him into the air and crushing his back and ribs. He was taken to the emergency room and hospitalized several times due to the injury, which left him disabled and unable to work. The dairy gave him only a few weeks of partial pay. Similarly two other plaintiffs, Ramon Molina and Eloy Vigil, were injured while working at dairies. Molina was attacked by a bull and suffered a broken shoulder and ribs. Vigil was kicked by a cow, severing his finger. None of the men had health insurance, and none could get the full medical treatment needed to heal. All three were thrown into deep poverty due to their injuries. They turned to charity care and other publicly funded programs, which were insufficient to meet their needs.

In our civil rights complaint alleging that the farm and ranch labor exclusion was an unconstitutional violation of the New Mexico equal protection clause, we sought injunctive and declaratory relief as well as workers’ compensation coverage for the named plaintiffs (Second Amended Complaint for Declaratory and Injunctive Relief for Civil Rights Violations, Griego (Sept. 2, 2010). We included facts that we could prove and get us beyond a motion to dismiss and convince a judge that the state’s purported reasons for the exclusion—administrative ease and the cost to the industry and the state—were not rational. We included facts to convince the judge that farm and ranch laborers were a “sensitive class” under the state equal protection clause. We set forth historical facts about the treatment of farm and ranch laborers over the past century as well as facts about their current working conditions. We included facts about our failed attempts to change the law in the legislature and the retaliation that workers face for complaining. We alleged facts to show that no rational reason justified treating farm and ranch laborers differently from other workers for purposes of workers’ compensation and that the very purpose of the law—to get injured workers back to work quickly and efficiently—as well as the interests of the public were best served by including farm and ranch laborers in workers’ compensation.

Because the state had witnesses—employees of the workers’ compensation administration—who stated that workers’ compensation could not cover farmworkers due to administrative barriers, we researched how other states covered agricultural workers under workers’ compensation. New Mexico was in the minority by completely excluding these workers. We spoke to advocates, attorneys, and state administrators in other states and learned that they included agricultural workers in workers’ compensation and had no special problems. We had people from several large agricultural states—Colorado, Arizona, and California—willing to testify for free about how they provide workers’ compensation to agricultural workers in the same way they cover all other workers.

In light of the state’s argument that forcing agricultural employers to offer workers’ compensation was not economically feasible, we developed evidence to prove that including farm and ranch laborers would cost the industry less than 1 percent of its profit margin. We worked with representatives of the insurance industry to learn how the costs of workers’ compensation insurance are determined and assessed against each employer and how much it would cost the industry overall. We worked with agricultural economists at a state university to determine the amount of profit each subsector of the industry made in a given year. The numbers were on our side; the industry overall could afford this coverage, and the individual crop subsectors were not going to be put out of business by this coverage. No special reason justified treating this industry differently from other industries. Why should restaurateurs have to cover their workers but not dairy owners? Indeed, pointing out the special treatment of this industry helped us convince the court that the exclusion was irrational.

We worked with a historian and an anthropologist and collected numerous governmental and academic articles about the historical treatment and current living and working conditions of agricultural workers. While most of the available published data were national in scope, our experts specialized in New Mexico’s farm and dairy laborers. We presented evidence that agricultural workers are the poorest of the working poor, that field workers make less than $7,000 a year and dairy workers make about $18,000 a year, and that they do extremely hard and dangerous work with no health insurance.

The state put all its eggs in one basket. It worked with the witness from New Mexico State University who had, on behalf of the agricultural industry, calculated that the industry’s costs to comply with a changed law would be $80 million. The industry had used this estimate to help defeat our bill in the legislature. The state planned to prove that this price tag would devastate New Mexico agriculture. At the deposition of this expert witness, however, we forced him to acknowledge numerous material errors in his report, concede that his cost estimates were wrong, and, doing the math with our attorneys there in deposition, admit that the total cost to the industry would be approximately $10 million, or less than 1 percent of its annual profit.

In ruling that the farm-and-ranch-labor exclusion violates the state constitution, the court recited many of the facts we had proven: the long history of discrimination and abusive working conditions of farm and ranch laborers, the notable growth and profits of the industry, the minor impact the addition of farm and ranch laborers would have on the state and the industry, and the major benefits the insurance would offer. In the end the court hung its hat on the irrational distinction in the law that workers who process food were required to be covered under workers’ compensation while those who picked or produced the food were not. The court struck down the exclusion.

Having won the lawsuit, including retroactive relief for our individual plaintiffs, we are now pushing the state to abide by the court’s ruling. New Mexico trial court opinions are not published, and the Workers’ Compensation Administration is claiming that a state district court judge does not have authority over the agency. New Mexico precedent, as well as general theories of constitutional law dating back to Marbury v. Madison, indicates that the state agency is wrong. The state is not appealing the constitutional ruling and is instead attempting to ignore it. We are confident that, based on the record we presented to the district court, we can have this issue brought before a higher court and result in a published opinion affirming that the farm-and-ranch-labor exclusion does not survive New Mexico’s heightened rational-basis test.

Because we have pushed for years to obtain workers’ compensation for New Mexico’s farm and ranch laborers, this legal victory is a huge step forward that requires their inclusion in the Workers’ Compensation Act. As usual, enforcement is where the real heavy lifting begins, and so our work is far from complete. While workers’ compensation coverage has its drawbacks, such as preventing workers from being able to sue employers for negligence, it also has strong protections for vulnerable workers who would not have a negligence case—such as workers who slip and fall at work, are bitten by a snake picking chile, or are kicked by a cow. Ending the exclusion of farm and ranch laborers from workers’ compensation is a step toward ending the discriminatory treatment of agricultural workers generally. These men and women, who labor in extremely difficult conditions to put food on our tables, deserve the same protections as other workers. Our state constitution was the best vehicle to get us there.

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