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Joan D. Flocks
Excerpted from: Joan D. Flocks, The Environmental and Social Injustice of Farmworker Pesticide Exposure , 19 Georgetown Journal on Poverty Law and Policy 255 (Spring, 2012) (207 Footnotes)
If the theory of compensating wage differentials were absolute, there would be no need for protective occupational health and safety regulation. The theory in a pure form assumes that workers and employers are in a total contractual state where workers assume and are compensated fairly for occupational risks. Regulation would hinder the bargaining process between employees and employers. The fact that regulation does exist, therefore, must reflect some inherent recognition that workers are not always on an even bargaining level with employers, and that some intervention is needed to put them there; regulations arise to protect potentially less powerful parties. In the case of occupational health standards, regulation may also exist in recognition of public health as a common good mandating protection even in spite of workers' own cognitive dissonance, and as such it should not be subject to bargaining.
Successful protective regulation requires that government enforce standards, that management complies with standards, and that workers are knowledgeable about standards. In the case of farmworkers, federal regulation should provide protection in two ways: directly--by regulating the conditions of exposure, and indirectly--by providing the resources farmworkers need to achieve some control over their working conditions. Yet for farmworkers, regulations that directly involve pesticide exposure are often nonexistent, ineffective, or unenforced. Furthermore, competitive domestic and international market forces pressure employers to lobby for less regulation of pesticides and pressure workers to remain unorganized and silent about workplace safety.
Farmworkers are exempt from many regulations that could afford indirect protection under the system of agricultural exceptionalism, which emerged during a historical time in the U.S. when institutional discrimination was accepted and prevalent. Even when protective regulation does exist, however, many employers use a variety of practices--such as hiring labor contractors or a temporary workforce--that allow them to circumvent laws and transfer many of the physical and economic risks of agricultural employment to the workers.