New Mexico Workers' Compensation Laws May Exploit Dairy Workers
The injury occurred on the job. A bull mounted a cow, and the worker was pinned against the stall. That led to a bloody and severe shoulder injury, surgery, and an inability to work.
“I went almost one month without work, and then after that, they called me back, but I was in no condition to work,” says this worker. He’s asked us not to use his name because it could jeopardize his ability to find future work in the small, New Mexico town of Portales. “I would bleed at work, and that’s how they had me working at the dairy.”
Doctors told him not to work after his first and second surgery, but he claims his employer told him he would lose his job if he didn’t come back. However, shortly after his return, he was fired anyway.
“Every day I have the same pain in my shoulder,” he says. “The last time I saw the doctor he said he’d need to do another surgery, but they took away my job and i couldn’t do anything.”
In cases like this, there are a few key points to keep in mind: the Agriculture industry is grouped into the Agricultural, Forestry & Fishing sector. It has a fatality rate about eight times the national average for all industries, and the rates of non-fatal injuries are also high. It’s estimated that just under 90-percent of dairy workers in the country are a mix of documented and undocumented, non-English speaking laborers. In New Mexico, dairies aren’t paying workers compensation because state law exempts Ag workers from getting it.
“It’s a big question why they’re just not willing to pay it,” says Gail Evans, legal director at the Center on Law and Poverty, the group that’s handling the lawsuit in the dairy workers case. “To provide workers comp insurance to all Ag. workers in the state would cost between 5 and 7 million dollars for the industry overall.”
As the dairy industry struggles with high costs and low milk prices, this expense is not an attractive option. In 2011, a district court in New Mexico ruled that the workers comp exemption for dairy workers was unconstitutional. Since then, the issue of whether or not dairy employees have the right to workers comp has been stuck in the court system.
“In the dairy industry, we cannot get insured on these big facilities without carrying some mind of liability coverage,” says Beverly Idsinga, Executive Director of Dairy Producers New Mexico. “So we feel that our workers are currently covered under the insurance practices that our producers carry.”
Idsinga also says carrying workers comp would cost too much, and since producers already pay liability insurance, the industry shouldn’t have to pay double.
“Right now you probably know the dairy industry cannot cover anymore costs,” says Idsinga. “We don't set the prices for the milk, those are decided by the federal government, so any additional costs we can't pass on.”
Idsinga didn’t have estimates for how much it would cost the industry to provide workers comp, or how much producers pay for liability insurance.
“One thing that almost everybody agrees on is anyone who works in New Mexico should be covered by some form of insurance, and provided medical care if they’re injured,” says Van Cravens with the states Workers Compensation Administration. “That’s about the only thing they agree on.”
And so the debate continues: should the state’s dairy industry pay full-fledged workers compensation to its workers? Or is providing insurance through private carriers enough? Private insurance allows for little tracking or enforcement when a worker is injured. But actual data on how many people are injured on the job in the state’s dairies are almost non-existent.
“It’s a situation that has existed for a long time, that a lot of good people on both sides are trying to do the right thing,” says Cravens. “But we’re really dealing with a national issue here. Basically you’re talking about a national social issue, and it goes way beyond New Mexico or what our statutes do or don’t do.”
In large dairy communities like Portales, signs of worker problems are only really visible when workers are willing to speak up, like the injured worker we met at the beginning of this story who now faces unemployment.
“A supervisor told me ‘don’t even look for work here, go to another state, because here they’re not going to give you work, anywhere’,” says the worker in Portales. “’Just like I know about your injury, many others know.’ Since it’s a small town here, it’s very hard for me to find work.”
He says between his injury and finances, he’s stuck in Portales for the foreseeable future.