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One year ago, Gabino Herrera-Cruz of Belle Glade, Fla., who was working in a North Carolina cornfield, was assigned to crawl into the space beneath two harvesting vehicles while they were moving and attach them with a chain. According to a local sheriff’s report, an untrained driver, not realizing Herrera-Cruz was working out of sight between the vehicles, backed up the trailing truck that hauled the ears of corn and crushed Herrera-Cruz’s head. The 29-year-old Mexican immigrant, who was in the U.S. illegally, died a day later. Last month, Herrera-Cruz’s family filed a negligence suit in Palm Beach Circuit Court. The suit is one of the few attempts to hold contractors liable for agricultural workplace accidents, which would have a major impact on the sizable agricultural labor staffing industry in Florida. The case also raises broader questions about whether authorities are adequately monitoring the safety of agricultural workplaces. Herrera-Cruz had been hired by Agricultural Employment Services, a Fort Myers, Fla., company that leased him and about 50 other farm workers to Naples farm labor contractor John Miller Harvesting. That firm, in turn, contracted with the North Carolina grower to harvest corn. The suit names Agricultural Employment Services (AES) and its Fort Myers parent company, P.E.O. Services Inc.; Miller Harvesting; and E&M Trucking Inc., a Belle Glade company that provided the trucks used in the corn harvesting. The suit alleges that the harvesting vehicle system as utilized by the defendants, known as a mule train, created an unreasonable risk of harm. The suit seeks to sidestep employers’ usual immunity from liability in the cases of workplace injury or death. Employers who purchase workers’ compensation coverage are immunized from civil liability for negligence. And workers’ comp death benefits in Florida are capped at $100,000. But under Florida law, that immunity is forfeited when the employer’s conduct is “substantially certain” to result in injury or death. The farm worker left behind a wife, Veronica Maya-Cruz, and three young children, who live in Belle Glade. His widow works as a farm laborer to supplement the family’s monthly death benefit of $866 from AES’ workers’ compensation insurance carrier. Plaintiffs in the suit are the widow and Consuelo Vasquez, as personal representative of the estate. The suit seeks damages for lost future wages, pain and suffering. West Palm Beach, Fla., lawyer Mariano Garcia, who is representing the plaintiffs, said it’s not fair that entities other than the direct employer are protected by the immunity. “[The contractors] enjoy all the benefits of Florida’s workers’ compensation system, especially the death [benefits] cap,” said Garcia, a partner at Gonzalez & Porcher, “but they take no responsibility for safety and health.” Some experts agree that the trend for growers to contract out for agricultural labor places the real employers beyond the reach of civil remedies, even in cases of gross negligence or reckless conduct. “Between growers and contractors and subcontractors, you’re confronted by sham structures,” said Cathy Ruckelshaus, litigation director of the National Employment Law Project, a New York-based advocacy group for low-wage workers. “It’s a screen, a diffusion of responsibility.” But AES chief executive officer M. Thomas Ruke Jr. defended his company’s handling of the Herrera-Cruz case and the safety record of his industry. “Workers’ comp benefits are being paid to the survivors,” he said. “There are no outstanding issues. This could have happened in any line of work. If workers’ comp rates are any indication, this line of work is safer than lots of others.” Ruke declined to discuss details of the suit, saying he had not yet been served. According to the Florida Agency for Workforce Innovation, there are about 84,000 agricultural laborers in Florida. Rob Williams, director of the Tallahassee-based nonprofit Migrant Farmworker Justice Project, estimates that the true number is twice that. The jobs are highly seasonal, and workers move to whatever part of the country is harvesting at that particular time. “If they’re not pulling sugar here, they’re up north doing corn,” Garcia said. The workers are rarely hired directly by the farmers whose crops they pick. According to a 1991 study by researchers at the University of California, Davis, following the passage of the federal Immigration Reform and Control Act of 1986 growers throughout the country turned increasingly to farm labor contractors like AES and Miller Harvesting to supply their labor needs. According to the UC-Davis study, Florida growers led the nation in percentage of total farm labor expenses going to contractors. That study called contractors “the indispensable glue that binds the Florida farm labor market together.” According to Williams, 4,000 farm labor contractors are registered with the state of Florida. Many of them are professional employer services, like AES, that started out primarily as providers of payroll and other functions and gradually broadened into labor recruiting. Farm labor contractors in Florida are required to register with the state Department of Business and Professional Regulation, whose farm labor program is responsible for enforcing the federal Migrant and Seasonal Agricultural Worker Protection Act of 1983. The act includes safeguards concerning hours, wages and working conditions. Farm-worker safety also falls under the purview of the federal Occupational Safety and Health Administration, which is widely considered too short-staffed to monitor the millions of far-flung workplaces over which it has jurisdiction. Despite government regulation efforts, farm work remains dangerous — the most hazardous occupation in the nation, according to the National Safety Council. Williams said OSHA does “an extremely poor job” of oversight, promulgating few standards for agricultural work, and that the state regulatory agencies have failed as well. They cite a number of cases in Florida and other states during the past decade in which farm workers died in the crashes of unsafe vans while being transported to or from work by labor contractors. Critics say the numerous employer entities in agricultural labor is a contributing factor to the unsafe conditions. “The switch to [farm labor contractors] puts the farm labor market further out of government influence or control,” the UC-Davis study concludes. Garcia said he chose to file the suit in Palm Beach County rather than Hyde County, N.C., where the accident occurred, because he felt a Mexican immigrant laborer would get “a fairer shake” here. He says the defendants may move to have the case heard in a North Carolina state court. To pierce AES’ immunity under Florida workers’ compensation law, Garcia’s complaint relies on North Carolina legal doctrine, as set forth in Woodson v. Rowland, a 1991 North Carolina Supreme Court ruling. Florida courts generally abide by the law of the state in which a plaintiff’s injuries occurred. The high court in Woodson created an exception to the general rule of the state’s workers’ compensation statute, ruling that “when an employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death … civil actions based thereon are not barred by the exclusivity provisions of the act.” Garcia said there have been similar rulings in Florida. Meeting the substantial-certainty standard is Garcia’s first hurdle, one which he hopes to clear with the assistance of official reports from the North Carolina Department of Labor. According to department documents, after inspecting the scene of Herrera-Cruz’s fatal accident, department officials concluded that the hook-up procedure for the mule train and the truck “require[ed] workers being exposed between two pieces of equipment while moving and out of the line of site [sic]” and was “ patently unsafe” and “a clear violation of the North Carolina general duty standard.” A problem for the plaintiffs is that the North Carolina Labor Department found that the proximate cause of the accident was that an untrained driver was driving the truck. “AES’ attorneys will use that language to say it was all the driver’s fault,” Garcia predicted. “But they shared responsibility [with Miller Harvesting] for the situation.” The Labor Department found that the safety violations were part of a pattern of illegal practices at the farm. “Workers were living in an uninspected, unregistered and uncertified temporary labor camp,” officials reported. As a result of the accident and the other violations of state occupational safety and health regulations, the department assessed fines of $3,750 against Miller Harvesting, later reduced to $3,000. But the North Carolina officials failed to assign any responsibility to AES, from whom Miller leased Herrera-Cruz and the other workers — even though AES was the employer of record for workers’ compensation purposes. AES “had no supervisors on the scene, had no control of the fatal events, [and] had not caused or in any way controlled the hazardous condition which led to the fatal event,” the Labor Department reported. “Thus … AES was not cited … as knowledge, control, or a causal relationship to the event cannot be proven.” While AES was absolved by North Carolina authorities, Garcia argues that Florida law holds the company fully liable for the work conditions of Herrera-Cruz and the other laborers it leased to Miller Harvesting. Garcia cites Florida Statutes Section 468.525, which provides that employee leasing companies, in their contracts with client companies, retain “a right of direction and control” over management of safety, risk and hazard control at the worksite or sites affecting its leased employees. AES’ Ruke, however, says that “that’s a right, not a duty.” Florida law also contains language specifically limiting the liability of companies such as AES. Florida Statutes Section 768.098 shields such companies from liability for the tortious actions of clients when the leasing company neither authorized nor directed the actions or “did not have actual knowledge of the tortious conduct and fail to take appropriate action.” “No Florida leasing company has ever been found liable for this kind of claim,” Ruke said. “We expect a directed verdict.” The North Carolina Labor Department report, in addition to condemning the mule train procedures in the Herrera-Cruz case, suggested a simple way to prevent accidents when hitching the mule train to the corn-hauling truck — stopping both vehicles before doing the hitching. But one of the defendants in the Herrera-Cruz lawsuit said that’s not economically feasible. “You need to keep it going,” Elmore Williams, owner of E&M Trucking, testified in a deposition. “The more [corn] is pulled the more he makes, I make, the people on the machine and everybody … the crew leader pushes them to do it. That’s the way they’ve been trained.” Williams said even stopping the vehicles before chaining them together wouldn’t make the job safe. “It’s still not that safe because you still got your fingers involved,” he said. “I tried to do it. You couldn’t pay me $300 a day, $500 a day to hook a truck up.”

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