“I want to work, but I also want to live.” These are the words of Maria de los Angeles Calzada Navarrete, a migrant agricultural farmworker who just successfully sued for increased COVID-19 protections in her workplace. Previously, she had allegedly been forced by her employer to move into housing with a coworker who exhibited COVID-19 symptoms and unable to obtain a COVID-19 test paid for by the company.
On November 20, 2020, Calzada Navarrete, a migrant agricultural worker in El Paso, sued her employer Village Farms, L.P. (Village Farms) for failing “to take measures to protect the health and safety of its workforce during the COVID-19 pandemic.” On January 15, 2021, United States District Judge David C. Guaderrama ordered that Village Farms enhance its COVID-19 precautions for employees in a variety of ways.
“This order delivers a clear message to agricultural producers across the country that they can and should implement certain basic measures to keep migrant farmworkers safe during the pandemic,” said Maxwell Dismukes, a lawyer with Texas RioGrande Legal Aid (TRLA) who represented Calzada Navarrete in this case. In the TRLA press release, Dismukes also credited Village Farms for “coming to the negotiating table quickly and agreeing to implement the measures we requested.”
“Maria and thousands of other farmworkers have gone to work every day during this pandemic to keep our grocery stores and kitchen cabinets stocked with food,” Dismukes said. “All she wanted was for Village Farms to take the simple steps needed to decrease her risk of contracting the virus and spreading it to others.”
Calzada Navarrete’s November 2020 lawsuit against Village Farms alleged that they violated the Migrant and Seasonal Agricultural Worker Protection Act (AWPA) and Texas state laws. Village Farms has neither admitted nor denied the allegations laid out in the November 2020 complaint, according to the order. The parties both acknowledge the beneficial measures Village Farms took to protect their workers from COVID-19, but the order compels the company to take extra measures to address the issues detailed in Calzada Navarrete’s complaint.
Calzada Navarrete worked for Village Farms’ packing shed, packaging vegetables “in their unmanufactured state, prior to delivery for storage,” among other duties. Village Farms is “one of the largest producers, marketers, and distributors of premium-quality, greenhouse-grown fruits and vegetables in North America” — operating in West Texas, Village Farms employs “at least 100 workers at its Monahans location,” where Calzada Navarrete worked.
At the time that the lawsuit references, Calzada Navarrete lived in housing provided by Village Farms, as her home was too far away from the worksite to commute every day. The lawsuit alleges that Calzada Navarrete’s managers told her she had to move from a trailer in which she had her own bedroom into a four-bedroom, two-bathroom trailer that already housed four other women. However, the lawsuit states that one of the residents who already lived in the four-bedroom trailer had begun to feel sick prior to Calzada Navarrete’s moving in and then tested positive a day after the move in.
At least four other Village Farms workers contracted COVID-19 in early September of 2020. The lawsuit alleges that Village Farms did not inform Calzada Navarrete that someone with COVID-19 symptoms has been in the trailer she was told to move into or notify her of the other cases. Furthermore, the lawsuit states that Calzada Navarrete asked her manager if Village Farms would pay for her to get a COVID-19 test and “provide a separate trailer for workers who were confirmed to have COVID-19″ — the answer to both questions was no. Calzada Navarrete was especially worried about the risks of the virus as she is 61 years old and suffers from high blood pressure: she also lives with her daughter and grandchildren, according to the lawsuit. At the time the lawsuit was filed, a sixth person started living in the four-bedroom trailer, with every occupant using the same bathroom and kitchen.
The lawsuit claims that to Calzada Navarrete’s knowledge, Village Farms has implemented some COVID-19 measures in their workspace, like taking workers’ temperatures daily before they enter the greenhouse and packing shed and promoting hand-washing; however, it alleges that there are also “policies which adversely affect the health and safety of employees” who live in the employer-provided housing. These policies — requiring workers to pay for their own COVID-19 tests, the lack of a separate trailer for employees with COVID-19, etc., mirror Calzada Navarrete’s experience.
The lawsuit also states that “if a worker tests positive for COVID-19, they must leave their trailer and they cannot work for an indeterminate period of time. Eventually, they are allowed to return to work and to live in the trailers.” According to the lawsuit, “the policy of requiring sick workers to return to El Paso violates 29 U.S.C. § 1822(c) by failing to provide free housing as required by 20 C.F.R. § 655.122(d)(1).”
In the January 2021 order, Village Farms agreed to take more precautions to address the issues Calzada Navarrete faced in her work. The company will now “make Best Efforts to notify any Employees when they have been Exposed to someone who is Known or Expected to have COVID-19.” This notification will occur both orally and written, in a language that the employee understands. Village Farms will also engage in contact tracing by asking a person who is COVID-19-positive with whom they were sharing spaces and being less than 6 feet apart.
According to the order, Village Farms will now provide COVID-19 testing for free to any employees “considered Suspected or Symptomatic cases” in a timely manner. The company will also take “heightened precautions for suspected cases” and offer living quarters to people who are suspected to have COVID-19. People who are symptomatic for COVID-19 will also be offered separate quarantine housing where they can be isolated from other employees. The order states that Village Farms will report known COVID-19 cases to the “Regional Director of the Texas Department of State Health Services or her designee.” Finally, Village Farms will stay updated on local, state, and federal guidelines regarding the prevention of COVID-19, according to the order. Read the full order here.
The AWPA contains anti-retaliation provisions for agricultural workers: Section 5050(a) of the law “states that it is a violation for any person to ‘intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against any migrant or seasonal agricultural worker’” because said worker has filed any complaint or testified in any proceedings. Although the lawsuit and subsequent order does not name Calzada Navarrete as a whistleblower per se, the anti-retaliation provisions are certainly an important component of the law. Strong, comprehensive whistleblower laws like the False Claims Act include anti-retaliation measures so that whistleblowers are protected from actions taken against them by the company, fellow employees, or otherwise. Agricultural whistleblowers are vital to exposing misconduct or failure to follow COVID-19 procedures, and these anti-retaliation measures are a great start to ensuring that agricultural workers can advocate for a safe workplace for themselves and their colleagues.