Lawsuit: Foster Farms Plant Operating in 'Naked Disregard' of COVID-19 Safety Rules

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A Sept. 16 photo taken by United Farm Workers organizer Oscar Mejia shows employees of Foster Farms' Livingston plant leaning past plastic dividers on the sorting line. Mejia added a large red arrow pointing to the workers, according to a declaration in a Dec. 17 lawsuit seeking to force the company to institute stronger COVID-19 safety protocols. (Oscar Mejia via court filings)

United Farm Workers of America and two employees of a Foster Farms poultry processing plant in the Central Valley have filed a lawsuit against the company, seeking an emergency court order to force Foster Farms to improve safety protocols at its Livingston complex.

In a complaint filed in Merced County Superior Court Thursday, attorneys for the union and Livingston plant employees argue Foster Farms puts workers at the plant at an increased risk of contracting and dying from COVID-19, accusing the company of operating in “naked disregard of both national and local guidelines.”

“Foster Farms requires employees to work substantially less than six feet apart from each other for prolonged periods of time with no plastic divider or similar protection between them, fails to rigorously or effectively enforce social distancing or even to supply masks, and fails to keep its workforce adequately informed of safety and sick leave protocol, including access to COVID leave pay,” the complaint says.

The lawsuit asks the court to immediately force Foster Farms to operate its Livingston complex in accordance with a Merced County health order issued in August and emergency rules recently enacted by California’s Division of Occupational Safety and Health (Cal/OSHA).

It does not ask that the plant be closed.

The suit also argues that Foster Farms’ operation of the Livingston facility constitutes an “unfair and unlawful business practice that gives it a competitive edge at the expense of its employees’ safety,” and a public nuisance that impacts the greater community.

Foster Farms “continues to ignore baseline workplace safety protocols, inexorably leading to further spread and infection in the Plant and community at large,” attorneys for the plaintiffs wrote in the complaint.

Merced County Superior Court Judge Donald Proietti declined to make an emergency ruling on Friday, instead opting to schedule a second hearing for Dec. 23.

“There are very significant issues that the court needs to look at before I make any type of emergency rulings,” Proietti said, “in light of what are federal emergency orders, statewide emergency orders, and with regard to a private commercial business operation, which is under operation as an essential industry.”

Foster Farms responded in court filings Friday that the lawsuit offers “allegations based primarily on anecdotal declarations and news articles that grossly misrepresent the substantial safety measures that Foster Poultry has implemented.”

The company also argues that regulatory agencies, including Cal/OSHA and the county health department, have primary responsibility to oversee operations at its plants, and the court shouldn’t intervene.

"Foster Farms does not comment on active litigation in detail," the company said in a written statement Friday. "We believe the current United Farm Workers lawsuit is without merit and have confidence that judicial review will find accordingly."

The company said it screens employees for symptoms, and follows the Centers for Disease Control and Prevention guidance, including mandatory mask wearing and workstation partitions. The plant is continuously cleaned, according to the company, and employee breaks are staggered. It is also installing portable air filters. Employees are also tested for COVID-19 continuously, according to Foster Farms.

Ira Brill, the company’s vice president of communications, said the positivity rates at the Livingston plant and two other facilities in Fresno have dropped in recent weeks.

“We continue to test all workers twice weekly at the Livingston plant and the positivity continues to be less than 1%,” Brill said Thursday through a public relations representative.

Monique Alonso, one of the attorneys representing plaintiffs in the case, said Foster Farms has not complied with the Aug. 28 Merced County health order.

“Their compliance has been incomplete, it’s been inconsistent, and they obviously need something a little stronger than the county of Merced saying you need to do this,” Alonso said.

Alonso’s co-counsel, UFW General Counsel Mario Martinez, called the lawsuit “a last resort and about protecting workers’ lives.”

Livingston Plant Facing New Outbreak

By early December, Merced County health officials added the Livingston facility to its list of outbreaks in the county for a second time. The plant was shut down for six days in September after an outbreak resulted in at least 392 workers testing positive for the coronavirus. Nine people infected in that first major outbreak died.

As of Dec. 10, at least 48 workers had tested positive in connection to the more recent outbreak, according to a Foster Farms email obtained by KQED.

Since reopening the plant in September, attorneys write in the lawsuit, Foster Farms has not fully complied with the Merced County health order.

“While the company made certain alterations following the September shutdown, its compliance has been irregular, ineffective, inconsistent or nonexistent — all emblematic of a basic disregard of worker health and safety,” attorneys wrote in the suit.

The lawsuit also includes eight declarations from plant employees, who describe working within 2 or 3 feet of one another, sometimes separated by plastic dividers or curtains, other times not.

One employee said in a declaration that she went to work during the temporary shutdown, despite the health order requiring her area of the plant to be closed.

Outbreaks at Foster Farms

Employees also say they have often been responsible for supplying their own masks, although some say they were provided face shields. Cal/OSHA emergency regulations that went into effect Nov. 30 require employers to provide employees with face coverings and ensure they are worn.

“Before the Company gave the workers the plastic shields, I recall my foreperson handing out a flyer to us workers that had instructions about how to make our own masks with a piece of cloth or bandana to bring to work,” employee Maria Trinidad Madrigal said in a declaration. “Shortly after this, I recall that some workers received yellow face bandanas, but I did not.”

One employee described feeling ill and discovering she was COVID-19-positive at the same time as her brother and another co-worker.

“After two months in the hospital with COVID, my brother Arnulfo passed away,” Maria Delgado, a 17-year employee of the plant, said in a declaration.

“People come and go in the hallway while people are punching in and out. There are a lot of people in a small area and there is no social distancing or being 6 feet apart,” Delgado said.

Delgado and other workers claim they have never received training about what to do if they are experiencing symptoms of COVID-19, and that a lack of information has created fear among employees.

“There has been no information-spreading, meetings, or training from supervision with regards to COVID, either before or after the shutdown,” Delgado said. “The workers just talk amongst themselves about people getting sick. I have read information in a flyer and have seen paperwork on bulletin boards in the hallway at the company that says the number of people that have tested positive but do not know how often it is updated.”

Outbreaks Span Multiple Central Valley Facilities

There are two other active outbreaks at Foster Farms facilities in the Central Valley in addition to the one in Merced County. Three employees at the company’s plants in Fresno have died from complications related to COVID-19.

At least 193 workers had tested positive at the company’s Cherry facility as of Dec. 8, according to Fresno County health officials.

A truck rolls into Foster Farms' S. Cherry Avenue facility in Fresno on Dec. 9. (Alex Hall/KQED)

An unknown number of workers have tested positive at the Belgravia plant, although Fresno County's director of public health, Dave Pomaville, said the number was substantially lower at that facility.

Cal/OSHA spokesman Frank Polizzi confirmed the agency has been notified of two workers who have died in connection to the company’s Cherry plant. Polizzi said Cal/OSHA was notified of one death on Sept. 20 and another on Nov. 25.

Cal/OSHA has five open inspections at the Livingston plant, and four at the plants in Fresno.

Foster Farms spokesman Brill confirmed on Dec. 11 that a worker at the company’s Belgravia plant had died since the start of the pandemic, bringing the total number of confirmed COVID-19 deaths at the company’s facilities in Fresno to three. But neither Foster Farms nor county health officials have confirmed the date of that death.

Foster Farms and Fresno County health officials have reported that fewer workers have tested positive at the company’s plants in Fresno in recent days.

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On Dec. 15, Fresno County Interim Health Officer Dr. Rais Vohra said in an email the positivity rate among asymptomatic individuals tested at the Cherry plant had dropped from 22% to 6% from Dec. 1 to Dec. 11.

“COVID-19 represents an unprecedented challenge to all who live and work in California,” the company said in a statement. “Foster Farms is committed to this task and to the ongoing protection of its workforce.”

Deep Singh, executive director of the Jakara Movement, a nonprofit that works within the Sikh Punjabi community and advocates for Foster Farms employees, said the lawsuit’s allegations are not surprising.

“After reading the lawsuit, we’re disappointed but not surprised that continuous complaints from workers and community organizations at the Livingston plant and other Foster Farms plants have not been resolved despite months of bringing attention to these safety matters, and months of Mr. Brill’s denials, sidesteps, pussyfooting and evasions,” he said.