Metropolitan News-Enterprise


Thursday, December 8, 2011


Page 1


Panel Says Lawmakers, Not Courts, Must Determine Whether Heat-Protection Rules Are Adequate


By SHERRI M. OKAMOTO, Staff Writer


Courts cannot rule on the adequacy of state regulations designed to protect outdoor laborers from heat illness, this district’s Court of Appeal has ruled.

Div. Three on Tuesday held that individual agricultural workers and the United Farm Workers of America could not state a cause of action under Art. XIV, Sec.  4 of the California Constitution—which grants the Legislature plenary power to create a complete system of workers’ compensation—since this provision is not self-executing.

Pursuant to authority granted by that section, the Legislature has enacted the California Occupational Safety and Health Act to assure “safe and healthful working conditions for all California working men and women” through enforcement of effective regulations. 

The act is administered by the Occupational Safety and Health Standards Board—which is charged with adopting, amending, and repealing occupational safety and health standards—and the Department of Industrial Relations—which administers the workers’ compensation system and is responsible for administering the state plan for the development and enforcement of occupational safety and health standards. 

In 2005, the Standards Board promulgated the heat illness prevention regulation, which applies to all outdoor places of employment, which sets forth standards for access to drinking water and shade, high-heat procedures for employers, and training to recognize the risk factors for heat illness. 

The plaintiff farm workers and their union alleged that this regulation was insufficient, and efforts to persuade state officials to make changes were “futile,” leaving them “with no choice but to ask the Court to require the State to take action to prevent more farm workers from suffering serious heat illness or dying.”  

Their complaint asserted that the state has failed to satisfy its constitutional duty by failing to adopt adequate requirements for monitoring heat stress; failing to impose mandatory requirements on the growers; failing to structure an effective enforcement system; failing to issue citations and impose adequate penalties; and failing to make penalties meaningful. 

Plaintiffs sought a declaration that the state, the DIR, and the Standards Board “have failed reasonably and adequately to perform their constitutional duty to create and enforce a system of workers’ compensation that makes full provision for securing the safety of farm workers against heat-related illness or death,” thereby violating the plaintiffs’ constitutional rights. 

Their prayer for injunctive relief also sought a mandate that the state, through the DIR and the Standards Board, create and enforce a system of workers’ compensation that “makes full provision for securing the safety of farm workers against heat-related illness or death.” 

Los Angeles Superior Court  Judge Teresa Sanchez-Gordon sustained a demurrer to this cause of action, ordering the dismissal of the state, the DIR, and the Standards Board.  

Writing for the appellate court, Justice Richard D. Aldrich reasoned that the plain language of the Constitution expresses a clear intent that implementing legislation is necessary to give effect to the constitutional right it creates.

Additionally, he said “[t]o the extent that article XIV, section 4 states a public policy, it does not create an affirmative duty on the part of the state.”

The justice interpreted the section “as defining the necessary provisions for a complete workers’ compensation system, and leaving it up to the Legislature to enact laws to give effect to each provision, including ‘securing safety in employment.’ ” 

Under the terms of this provision, he said, “[t]he Legislature must act to fulfill its constitutional mandate to create the workers’ compensation system, and the judicially enforceable rights are the laws it enacts.”

Aldrich also concluded that the relief sought by the plaintiffs would violate the separation of powers doctrine, explaining that the “appropriate corrective mechanism is through the political process or legislative clarification.”

Presiding Justice Joan Dempsey Klein and Justice Walter Croskey joined Aldrich in the decision.

Plaintiffs were represented by Bradley S. Phillips, Stuart N. Senator, Shoshana E. Bannett, and Gabriel P. Sanchez of Munger, Tolles & Olson; Catherine Lhamon and Maureen Carroll of Public Counsel Law Center; Mark D. Rosenbaum of the American Civil Liberties Union of Southern California; and David Blair-Loy of the ACLU Foundation of San Diego & Imperial Counties.

The state and DIR were represented by Chief Counsel Vanessa L. Holton; Assistant Chief Counsel Frank Nelson Adkins; Staff Counsel Anthony Mischel and Sarah L. Cohen; Chief Counsel Amy Martin; and Staff Counsel William Nguyen.

David Beales served as counsel for the California Occupational Safety and Health Standards Board.

The case is Bautista v. State of California, B226102.


Copyright 2011, Metropolitan News Company