Death on a Dairy – Transcript

September 9, 2016


What do you eat for breakfast? I like a bit of steel cut oatmeal with warm milk and yogurt with fresh fruit and when I sit down to eat I rarely think about where it all comes from. And that might be a problem for the people who work to make my breakfast and yours, possible.

Turns out dairy farms can be some of the most dangerous, unregulated places to work. There are hinges and machines and huge cows to contend with. Reporter Eilís O’Neill headed to upstate New York to find out just how dangerous it is to work on a small dairy farm. And a warning: there’s a graphic description in the first two minutes of our story.


Arminio Órtiz Pérez lives and works on a dairy farm in Munnsville, a small town in upstate New York. The farmhouse where he lives is a bit dilapidated. In the room where we talk, the window is broken, and the wind is blowing in. He keeps hopping up to refasten a cloth that covers the missing panes.

PERÉZ: Yo soy de Guatemala.

Arminio’s from Guatemala. The most recent survey estimates that fifty percent of workers on U.S. dairies are immigrants, and the majority of employers aren’t sure about their employees’ legal status. Arminio is undocumented.

PERÉZ: Ya llevo 5.5 años—ya voy para seis años—estando aquí en EEUU. Juntos habíamos venido.

Arminio says he and his older brother, Marco Antonio, immigrated to the US five and half years ago. Both of them left wives and small children behind. The plan was to find work, send money to their families, and eventually go back home. The first part panned out: They both got jobs on dairy farms about three hours apart. They were saving money and hoped to return to Guatemala soon—but things didn’t turn out that way.

PERÉZ: Tuvo un accidente, según dijeron. Fue en el trabajo. Dijeron con una máquina de moler—no sé cómo se llama—donde se muele el maíz para comida de las vacas.

Arminio says, one day in November 2014, Marco Antonio was cleaning a grain silo at the organic farm where he worked. Inside of the silo was a pair of notched screws and  somehow, Arminio’s brother got caught on one of them. It mangled his body and killed him.

As soon as he heard about his brother’s death, Arminio asked his boss to drive him the three hours to the town where his brother had lived and worked.

PERÉZ: En el hospital, entramos a ver a mi hermano, si era mi hermano.

Arminio explains: First, he had to identify the body.

PERÉZ: Sí, sí, era. Después, vinimos a traer las cosas a la casa. El único que me entregaron: su billetera, su encendedor, su teléfono. No más. Es lo que llevaba en el trabajo.

Arminio tells me: Yes, it was his brother. They gave him Marco Antonio’s things: his wallet, his lighter, his cell phone. Nothing more. That was all he brought with him when he was working.

PERÉZ: Fue difícil para mí. Imagínese, es el único hermano que tenía aquí. Siempre hablábamos. Y, en el momento, el año pasado—apenas va a ser un año y medio que se murió. Entonces es difícil. A veces ya uno no puede trabajar bien, estar pensando y pensando.

Arminio says his brother’s death was hard for him. Imagine, he says, Marco Antonio was the only sibling he had in the US. They talked all the time.

It’s been a year and a half—but it’s still difficult, Arminio says. Sometimes, he can hardly work, because he’s thinking about his brother. Thinking and thinking.

The logistics were troubling as well. Arminio had to get his brother’s body back to Guatemala. It took two months and cost thousands of dollars. Arminio says, at first, his brother’s employer claimed not to have any money to spare–but eventually sent a check for three thousand dollars, which covered only a portion of the cost of repatriation.

It was a full year before Arminio received worker’s compensation for his brother’s death. During that time, he, alone, had to support thirteen people back in Guatemala: his parents, his six younger brothers and sisters, his own wife and daughter, and his brother’s wife and two kids.

What happened to Marco Antonio is not an anomaly. The Occupational Safety and Health Administration, or OSHA, is the arm of the government that writes safety regulations–say, for construction sites and factories and oil rigs–and then checks to make sure those regulations are being followed. Steve Kaplan is OSHA’s regional enforcement administrator. He ticks off a laundry list of ways to die on a dairy farm.

KAPLAN: Being trampled, being struck by livestock, being struck by vehicles, backed over. People have fallen into and drowned in manure pits. There’s hazards associated with the way feed is stored on dairy farms. There’s hazards associated with the chemicals that are used on dairy farms.

On top of all those hazards, dairy workers can have crazy shifts—like six hours on, six hours off around the clock. Sleep deprivation makes the work even more dangerous. And when farmers and workers don’t speak the same language, proper training becomes a challenge. All of this can lead to deadly outcomes. The New York Health Department counted 70 deaths on dairies in the last decade.

Farm worker advocates say most of these accidents are preventable. Rena Steinzor is a professor of health, safety, and environmental law at the University of Maryland.

STEINZOR: People say these are accidents as if they’re sort of weird things that happen that no one ever thought about. That’s not what’s going on out there. These are preventable, foreseeable incidents.

In 2014, OSHA launched what it called “local emphasis programs” in New York and Wisconsin, two of the country’s biggest dairy producers. These are an effort to educate dairy farmers about safety and to conduct surprise inspections of farms. On paper it seems like a good way to prevent accidents, but here’s the thing: OSHA can’t inspect most of the state’s dairies. It doesn’t have jurisdiction over small farms even though, collectively, small farms employ sixty percent of the state’s dairy workers.

KAPLAN: If they have ten or fewer non-family-member employees, we have essentially no ability to conduct an inspection on those farms.

O’NEILL: Even in the case of a fatality.

KAPLAN: Even in the case of a fatality, yeah.

That’s right. Even if there’s a death on a small dairy, OSHA can’t investigate.

What do they do in that situation? Send out agents to ask two questions. One, do you have more than ten employees? And two, do you maintain a temporary labor camp? If the answer to either of those questions is yes, the farmer could be subject to fines or even a criminal investigation. But, if the answer is no, the agents turn around and walk off the farm.

Technically, small dairy farmers are obligated to follow the same rules as larger dairies. But no one’s checking to make sure they do. Here’s Rena Steinzor again.

STEINZOR: I mean, they’re basically self-regulating. And we don’t expect anybody to self-regulate. I don’t get to decide if I pay my taxes, right? I’m running a risk if I don’t.

You know, we do everything on the basis of what’s known as deterrence-based enforcement. So you find one bad actor and you really prosecute him and that keeps everybody else on the straight and narrow. That’s the theory. And, you know, you see it in street crime; you see it with the IRS. This is how everything works.

Everything but OSHA. Steinzor argues OSHA isn’t working at all. Take California, for example, where state workers, not OSHA, inspect all dairies—large and small. In the past decade, there have only been sixteen deaths on California’s dairy farms, even though California produces more dairy than any other state by far.

Steinzor says that just shows how hamstrung OSHA is.

STEINZOR: It’s underfunded, terribly underfunded. It has inadequate legal authority—the laws that it enforces are very weak and do not provide a deterrent to bad actors—and the third problem is that [IC3] it never enjoys adequate political support.

OSHA’s budget is about five hundred million dollars, that’s much smaller than the other two agencies charged with keeping Americans safe—the EPA and the FDA—those have budgets in the billions. Year after year, the appropriations bill that funds OSHA has come with a rider that keeps the agency off small dairies. One of the rider’s most vocal proponents is Congressman Richard Hanna, who represents a farming community in upstate New York. He also grew up on a small family farm.

HANNA: Nobody has a greater interest in staying safe and healthy than the people who work with their families. And for the government to step in and say, “We know better,” is typical but wrongheaded.

Wrongheaded because regulation won’t necessarily make workers safer, he says, and it might have some unintended side effects.

HANNA: The government has it in its head that they can prevent every incident and create perfect outcomes, but in the process they kill the goose that lays the egg.

In other words, more regulation could put New York’s dairy farmers and all their employees out of a job.

I contacted several farmers who’d had deaths on their dairies, but none of them wanted to talk to a reporter. I still really wanted to see how a small dairy farm works, and Rick Day agreed to show me around. He’s the co-owner of the Day Brothers Dairy in Phelps, New York. I’m trying to get into his pick-up truck, but it’s a bit tricky.

DAY: Now, when you close it, you’ve just got to push the lock down and then close it.

O’NEILL: Okay.

[door slams]

O’NEILL: Oh, push the—

DAY: Push the lock down, and then close it.

O’NEILL: Did that work?

DAY: Well, open it up again. Now push the lock down. Now slam it.

[door slams]

DAY: There you go!

Everything on Rick Day’s farm is a bit like his truck: old, somewhat rickety, holding up if you know the right tricks. His barn was built fifty years ago. His automatic milking equipment isn’t so automatic anymore. And it might be time, not just for a new truck, but also a new tractor and skid loader. Maggie Gray is a political science professor who researches dairy worker safety at Adelphi University. She says outdated equipment like Rick Day’s can make small farms less safe.

GRAY: The way, you know, the key to open your front door, you have to push it all the way in, pull it out a little, wiggle to the right before you turn it to the left and then you give somebody your keys and you don’t necessarily think, “Oh, I better tell them the secret to how to open the door,” because you’ve become so acclimated to these workarounds.

If the workarounds get lost in translation, that can be dangerous. But new equipment can be hard to come by. Rick Day’s reluctant to invest in a new tractor or skid loader because milk prices are so volatile. Right now, he’s barely breaking even at one dollar a gallon. Also, dairy farmers get paid a month behind; in September, they find out how much they made for the milk they produced in August. Big dairies can use bank loans to ride out low prices, but small dairies have to scrimp and save. It’s not easy.

DAY: I don’t have enough people here right now that I can get a day off. So I haven’t had a day off in two and a half years. [laughs]

Rick Day is a fifth-generation dairy farmer and has spent all sixty-one of his years on this farm. Day’s children—and the children of many dairy farmers—have moved to cities looking for easier, better-paid work. So, increasingly, dairy farmers are relying on immigrants. But Rick Day doesn’t hire immigrant workers.

DAY: I’m nervous about—I had one Mexican that I thought I was going to hire, but his wife did all the talking. He couldn’t speak English. And I’m thinking, “How can I hire him on to feed animals and be able to read the charts and know what to feed the cows and how to feed them and all this and that?” If I was in a different situation—the bigger farms or something—I might be able to fit him in somewhere, but, in my case, I couldn’t do it.

Rick Day says he wouldn’t mind more regulation. There have been minor injuries on his farm—like workers getting kicked—but nothing major. No one has ever filed a worker’s comp claim against him. He says workers, especially when they’re tired, need to take the time to be careful.

DAY: “Okay, I’m gonna hurry up and do this or do that.” And that’s how people get hurt. You gotta try to stay calm and think about it. If you need to take a break, you need to take a break.

But not everyone is as cautious as Rick Day, and some dairy workers report feeling rushed by their employers.

Dairy worker advocates say regulation is the one way to get everyone up to the same standard of safety. But, Professor Maggie Gray says undocumented workers have next to no power to demand regulation.

GRAY: Undocumented farm workers aren’t writing checks for campaign contributions. Undocumented farm workers are not going to the poll to support you. Undocumented farm workers are not putting a sign on their front lawn that says “Vote for so-and-so.”

It’s an uneven power dynamic. The New York Farm Bureau opposes more regulation for small dairy farmers,  and they have a lot of lobbying power.

That’s why dairy worker advocates aren’t counting on Congress to change the rules. Instead, they’re pressuring organic farmers to add safety standards to the organic regulations. Rena Steinzor, the University of Maryland law professor, suggests another solution.

STEINZOR: I’ve gotten so discouraged with the regulatory system that I actually think that criminal charges in cases where workers are injured or die in entirely preventable and foreseeable ways is a very important alternative.

In one case, this is happening: the wife and son of Francisco Ortiz García, from Veracruz, Mexico, are suing a dairy farmer near Ithaca, New York, for criminal negligence. Their suit claims the skid loader that killed Francisco was unsafe and dangerous. But, usually, lawsuits can be pretty complicated in close-knit communities where the county prosecutor and dairy farmer might be friends. Also, New York labor law protects undocumented immigrants, but their families might still have trouble launching lawsuits from thousands of miles away.

In this way, small dairy farms are not that different from other industries that rely on undocumented immigrant labor: The workers themselves face the biggest risks.

Arminio Órtiz Pérez says, if he could be in the US legally, he wouldn’t be working on a farm.

PERÉZ: No que se diga. Que es trabajo. Con las vacas sí hay otro poquito de peligro a veces, pero, como la necesidad obliga.

Arminio says dairy farming is dangerous—but he needs work, and this is work.

For Life of the Law, I’m Eilís O’Neill.


Death on a Dairy was reported by Eilís O’Neilland edited by Ibby Caputo with sound design and production by Jonathan Hirsch. We want to thank Byrd Pinkerton and Kirsten Jusewicz-Haidle for their production support. Howard Gelman was our engineer.

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