Tyson Foods
Workers on the floor of a Tyson Foods meat processing plant in Storm Lake, Iowa
Since the World Health Organization officially declared COVID-19 a pandemic just over a year ago, there have been at least 5,182 cases and 23 deaths in North Carolina’s farms, meatpacking plants, and other food processing facilities. The real numbers are likely higher. Migrant workers are often missed if they don’t live in migrant worker housing. And the state’s Department of Health and Human Services counts cases among migrant farmworkers as “outbreaks” only when the setting includes more than ten individuals. According to Lariza Garzon of the Episcopal Farmworker Ministry, of 1,877 migrant labor camps in the state, 1,011 are certified for fewer than ten occupants, suggesting a higher likely level of COVID within migrant farmworker settings.
The COVID crisis sheds some light on deeper patterns of ongoing neglect. In a normal year, North Carolina farms and food processing plants display a range of abuses: workers forced to wear diapers in lieu of bathroom breaks; lacerations and development of syndromes like carpal tunnel from blistering, repetitive motions; prison-commissioned workers suffering chemical burns and being treated with diaper rash cream. Some workplaces have simply lagged in adequately cleaning and enforcing safety standards, while refusing to stop or slow the endless march of production. This year, the maltreatment was only heightened. Workers are not only at risk of contracting the virus. They fear retaliation from reporting cases. Often employers neglect to inform them when co-workers test positive.
In principle, these workers are supposed to be protected by the Occupational Safety and Health Administration (OSHA). The organization sets and enforces standards, and provides training, education, and assistance to employers and employees. But the agency has been weakened for years, even before the pandemic, and was further eroded under Trump’s deregulatory regime.
Staffing numbers are at a 20-year low; the latest employment numbers from September 2020 showed 1,866 people working at OSHA—down by 400 from the peak, as the size of the U.S. workforce continues to grow. This includes sharp declines in compliance and industrial hygiene inspectors. An April 2020 report from the National Employment Law Project revealed that as of January 1, 2020, only 862 people were employed as direct inspectors—the lowest number since 1975. A report from the Office of Inspector General found that in 2020, OSHA complaints increased by 15 percent, while inspections decreased by 50 percent, as compared to the same period of time in 2019.
North Carolina is one of 22 states that operates on its own state OSHA plan. In principle, that is still required under federal law to be as “effective in providing safe and healthful employment” as federal OSHA guidelines. But North Carolina is one of a few states whose labor commissioner is directly elected rather than appointed by the governor. Democratic Gov. Roy Cooper has run into a stone wall in trying to enact an executive order setting higher safety standards during the pandemic, especially for workers in farms, meatpacking plants, and other food processing facilities. And it’s not clear how hard he tried. The governor sent an order draft to the North Carolina Department of Labor last August 28. But the agency—headed by an elected secretary with long-standing ties to the food processing industry—balked, claiming it represented overregulation of industries that “have shown a willingness to voluntarily comply with CDC guidance to protect their workers.”
Several advocacy groups, led by the Lawyers’ Committee for Civil Rights Under Law, North Carolina Justice Center, and Southern Poverty Law Center, then filed a petition in October requesting the department to adopt a permanent rule to require employers to better protect workers from COVID-19. The agency summarily rejected it in early November. In response, the groups appealed in state court, and the case is ongoing.
In her agency’s November rejection, then–Commissioner of Labor Cherie K. Berry, a Republican, asserted that “regulatory, compliance-based enforcement” would be “much less effective than working with other state agencies to mitigate the virus,” describing the role of agency teams as “consultative and educational,” rather than regulatory.
However, it’s clear that voluntary “consultation” has not adequately protected workers. “Unscrupulous employers—like all employers in the processing industry—are not going to do anything that they don’t have to do,” says Hunter Ogletree of the Western North Carolina Workers’ Center.
The advocacy groups found that the state labor department opened investigations only on six occasions, out of some 1,000 COVID-related workplace complaints. Berry responded that the agency conducts investigations into “all valid complaints,” but does not carry out inspections on every complaint. Berry asserted that, in many instances, investigations that simply request employers to provide a response to complaint allegations “can be satisfactorily addressed in a much timelier way” than in-depth inspections.
But given how many migrants work in unsafe settings, it’s unsurprising that workers may refuse to sign complaints against bosses. “Migrant workers who are fearful of retaliation from their employers aren’t going to be making reports and filing complaints. They might not necessarily even want to acknowledge that they had COVID,” says MaryBe McMillan, president of the North Carolina AFL-CIO. That’s why inspections need to be routine and comprehensive, and not dependent on workers risking their jobs.
BERRY’S DEFERENCE TO EMPLOYERS is reflected in financial contributions to her campaign. Among her donors are the North Carolina Farm Bureau PAC and North Carolina Growers Association, the nation’s largest distribution point of foreign “guest workers,” a system housed under the H-2A visa program, which brings foreigners into the U.S. for temporary agricultural work during times of labor shortage. Employers utilize the program to resist hiring domestic workers and exploit vulnerable foreign workers instead. The North Carolina Growers Association joins an industry fraught with worker intimidation, rampant wage theft, and substandard working conditions. Employers get away with it because these foreign workers are virtually indentured to them. If the workers lose their job, they must leave the country.
In 2008, The Charlotte Observer reported that at least half of Berry’s campaign donations came from heads of companies that had been inspected by her department. The Observer found that these donors received disproportionate fine reductions for workplace safety violations (under a regime that already was cutting OSHA penalties): The proposed fines for violations at companies run by her donors were cut by more than 70 percent, while penalties overall were cut by about 42 percent.
Further, The News & Observer reported that Ronald Cameron, chairman of poultry processing facility Mountaire Farms, first donated $500 to Berry in 2003. In her 2016 re-election campaign, Cameron donated $10,000. Mountaire Farms is specifically named in the advocacy groups’ complaint as a workplace host to numerous COVID-related complaints not acted upon for seven to eight weeks; some of what allegedly did occur was the agency sending a letter to the employer but neglecting to investigate other complaints, such as workers’ inability to social distance.
Now, advocates confront newly elected Republican Labor Commissioner Josh Dobson. McMillan, head of the state’s AFL-CIO, is hopeful that—despite disagreements surrounding issues like right to work and collective bargaining—Dobson will be more amenable than Berry. “It remains to be seen how much Commissioner Dobson is willing to do to protect workers, but we’ve been encouraged by his willingness to meet with worker advocates. He also seems to understand that it is his job to enforce any federal standard that comes down from federal OSHA.”
Despite early hopes however, Dobson has received contributions parallel to Berry’s, including from the North Carolina Farm Bureau PAC and North Carolina Pork Council Multicandidate Committee. The first test is on the horizon, as President Biden directed federal OSHA to consider adopting an Emergency Temporary Standard (ETS) related to COVID-19 and announce its intentions by March 15. Though the deadline has passed, the announcement is expected soon.
Rumors are already circulating that Dobson will not enforce the standard. When asked for comment, a spokesperson from Dobson’s office said that if OSHA does adopt the standard, their department “will consider how, and to what degree, to adopt that standard in North Carolina.” This qualification is notable given that state plans are required to adopt OSHA standards.
SINCE PRESIDENT BIDEN TOOK OFFICE, OSHA has announced a National Emphasis Program (NEP) “focusing enforcement efforts on companies that put the largest number of workers at serious risk of contracting the coronavirus,” prioritizing employers that have retaliated against workers. However, the program is just an OSHA directive, not an OSHA standard, so there is no mandate for state plans such as North Carolina’s to enforce it. The North Carolina Labor Department spokesperson told me that the office is reviewing the NEP and will advise OSHA within 60 days on whether they will adopt the program.
If state plans such as North Carolina’s continue to be intransigent, the Biden administration has several options. The Occupational Safety and Health Act grants federal OSHA broad authority to “promulgate, modify, or revoke occupational safety and health standards.” In fact, North Carolina offers a grim precedent. In 1991, after a fire at the Imperial Foods facility in Hamlet, North Carolina, killed 25 workers and injured another 55, federal OSHA seized control of the state’s program, enacting substantial changes before returning control to the state.
Part of the problem is inadequate resources. A 2013 Government Accountability Office report found that though federal OSHA does have authority to assume control of weak state plans, it seldom exercises it. Moreover, those tasked with enforcement often defer to employers, either refusing to conduct adequate inspections, or issuing meager fines (as exhibited by Commissioner Berry’s past).
Biden’s administration could also supplement the agency’s budget, given the ever-growing and diversifying workplace, and the long-standing inadequacy of the agency’s resources. It could also step in more aggressively when states refuse to protect workers. Legislatively, Biden could push the Protecting America’s Workers Act, first introduced by the late Sen. Edward Kennedy in 2004. The latest iteration of the bill, re-introduced by Reps. Joe Courtney, Alma Adams, and Bobby Scott (who also co-introduced the PRO Act in 2019), expands protections for whistleblowers, increases penalties for certain violations, and expands enforcement requirements related to state plans, among other things.
Thus far, Biden has appeared willing to push the bounds of presidential worker advocacy, especially through the auspices of pandemic response and National Labor Relations Board protections of workers’ right to organize. OSHA, whose official head has yet to be named, seems a lower priority. But with the pandemic far from over, the efficacy of OSHA protections will be his next big test. Will Biden merely add some inspectors? Or will he build OSHA up to be the worker watchdog it was intended to be?
