My friend Liza, who worked for the UFW back in the 70's, would never cook with canned tomatoes: she had heard too many stories from farm workers about what ended up on "tomates de lata" out there in the fields. You get what you don't pay for.

Damn you beat me to it Henry. This is one of those hygeine matters where it's in all of our self interests to provide these facilities to prevent the spread of disease. Grandad's dad knew this, it was called public health. But I guess we've forgotten all those lessons.

This is why many "conservative" judges are bad and why they should be an issue. It is on cases like this -- which are decided every single day -- where you get business-friendly activist judges "righting" what they see as regulatory wrongs. Unfortunately, from the public's perspective, the difference between activist and nonactivist judges concerns abortion and gay marriage, where indeed it is the "liberal" judges who engage in activism to reach policy outcomes they like.

I want to be very clear -- there are many Clinton judges who are just as bad as those of this 8th Circuit panel on business-centered activism. Indeed, in many cases I'd rather have true conservatives who will apply the law. But when groups like the Federalist Society are seemingly predicated on attacking the legitimacy of any regulation of commerce, it should not be surprising when their members bend over backwards to accomplish deregulation whenever possible.

You are correct, this is the type of decision that just erodes worker's rights. Sadly, the workers may not even be allowed time to go to the restroom.

The guys who are refurbushing the apartments I live in go to the bathrrom in the thinly wooded area surrounding the complex. They have been giving no other place to go- no open apartments, no porta-johns. I hate it for them, and for us tenants. And Georgia law does state that they have to be given a place.

"This is why many "conservative" judges are bad and why they should be an issue. It is on cases like this -- which are decided every single day -- where you get business-friendly activist judges "righting" what they see as regulatory wrongs."

Agreed! Which goes back to Nathan's excellent "In Praise of Schumerism" piece, in which he says that it is perfectly OK to reject judges based on their ideology.

The simple way to fix bad decisions like this is to lock all of the bathrooms in the courthouse.

While you may try to instill the need for a 'potty' in the field, most of your concerns for 'sanitary' food have already overridden common sense by getting rules passed to REMOVE porta-potties from being too close to the crop fields, and make old-fashioned natural latrines illegal. (oooo, they're tho thtinky!)
Better to become activists who encourage smaller farms, where the people growing the food actually EAT what they grow, instead of working on ways to enable and sanitize the exploitation of migrant labor and the centralization of processing facilities, which increases the size of any particular contamination event. huh.

ah, so they'll have to shit in a bucket like a prisoner who is suspected of having keistered drugs. That'll keep them damn honest laborers in their place.

(yes I know they'll just go on the crops, but it was too much)

the real ereason they don't want a toilet is that they don't want the workers to stop working. they could care less if you dropped dead in the field as long as you didn't interrupt anyone else. the farmers out west in calif own the police dept and you havent got a chance doing any complaining, so a bathroom is reallly a small item on a big list.

i was born and raised on a farm...you don't want
too know what goes into tomato juice or canned
goods...dirt, roots, old gloves whatever is cutup
blended into and dispensed with the government
allowed amounts of rat feces, rodent hair, and other goodies beyond good taste...the scum that is
the agrabiz shits on us all through the services
of our bought and paid for government...

ah, thanks. i really must number my list of reasons for emmigrating to europe. wonder what number "wanted to stop worrying if there was human piss/feces in my produce" is?

Neither the original post nor the commenters have made any legal arguments for or against the decision. Everyone seems concerned with whether or not the decision makes good policy. Isn't that the definition of judicial activism?

I grew up in Salinas CA. The worthies there were outraged when farmers were required to provide the laborers a toilet out in the fields. To the best of my knowledge, they figured that the workers could shit and piss in the fields just like the other animals.

Anonymous-- the definition of judicial activism is the unelected branch- judges-- second-guessing elected officials. In this case, the executive branch had determined that the law required the availability of toilets.

Good policy or bad policy, that was the DOL's determination. Judges can find that the executive branch has violated the intent of the other elected branch-- Congress -- in interpreting the law, but such second-guessing is supposed to only happen when the law is clearly violated. The technical term for this is called CHEVRON deference in honor of a Supreme Court case which calls for that deference to administrative decisions.

This Court, as noted, used rather torturous logic to make their argument. The fact that they had to make such complicated arguments is pretty much proof that the law was NOT clear, so they should have deferred to the DOL's interpretation.

The fact that they second-guessed the DOL is the judicial activism.

The 8th Circuit decision does not overturn OSHA's requirement that agribusinesses must provide toilet facilities. It interpreted OSHA's regulation regarding the distance to a facility. My understanding is that a facility must be within a 1/4 mile walk unless the terrain makes infeasible, then the facility must be placed at the closest vehicle access.

The issue was whether a field with cornrows a mile long fit the terrain exception. The business did provide facilities at the closest vehicle access. The court ruled the fields did fall within the exception noting that OSHA failed to consistently interpret its regulation.

The business still has to provide toilets just not within a quarter mile walk.

I do not know about now, but when I was in high school, "detasseling" corn was a fairly popular summer job for high school students. I did it when I was in high school. It was tiring but it paid better than camp counseling, fast food, or telephone interviewing (my other summer jobs).

I wonder how the justices would rule if they had to make a "quarter-mile walk" to the bathrooms in their courthouse.

Conservative judicial activism is nothing new; check out drug-related forfeiture cases from the 90s.

This type of decision is but another example of the huge and widening disconnect between US approaches to agrocommerce and European approaches, which place much more importance on employee working conditions, one of the primary requirements being access to water and toilets. Any producer who does not meet such requirements will not be able to export legally to Europe.

South America, which is rapidly asserting itself as a prime source of world food production, is currently serving as a battle ground for the US approach to trade vs. the European approach. The US has been trying to strongarm various countries into lowering standards of production, while Europe has been persuing trade agreements that would require new and much-needed focus on land use planning and production standards.

Sadly, these issues don't get much press coverage down here.

Stories about gay marriage accomplish at least two things. They excite the GOP base. They also point the camera away from shitty issues.

And obviously the Court has either had its hepatitis A immunizations, or it hasn't been reading about the recent mini-epidemic traced to Mexican scallions served at the Chili's chain. Those farm workers don't have toilets, either.

Canned veggies? Worry about the "healthy" fresh ones...

Pine, I also used to detassle corn, but I was maybe all of 12 years old. I remember that one of the farmer's sons used to walk around and intimidate (physically threaten) the kids into working hard. I remember that there wasn't drinking water available despite working in the hot sun. I only did this for two weeks. I can only imagine what it must be like to earn your living like this, but because of my experience, I can imagine it better than most.

This is a great read. The issue here reminds me of the issues raised by 2 great muckracking books: "The Jungle," by Upton Sinclair, and the recent bestseller "Fast Food Nation." Both books went to great lengths to expose readers to how terribly mistreated food workers were/are; labor issues were clearly in the forefront of the authors' minds. But the books caused a stir for a different reason: they raised fears about a tainted or unhealthy food supply. That's what people talked about. People tend to approach this problem as consumers first (how does this issue affect me?), with other concerns falling a distant second. That said, if we can't get people to pay attention to the appalling way that farmworkers are treated, can we scare them a bit by talking about how this affects the food supply? What can be done to get through to the general public?

I did not think their logic was all that torturous. They simply felt that the enforcement in the present case was inconsistant with the OSHA rule at the time it was promulgated.

As a fan of many examples of true "judicial activism," I don't believe this is judicial activism.

The term, for me, concerns courts implying, expanding, or otherwise changing the meaning of the words of a statute or constitutional article to make policy, or, as the critics say, "legislate." It is not about not second guessing elected officials, but rather not following the letter of the law. It might also be noted that the DOL as part of the Executive Branch is not really elected, but is largely a stable civil beuracracy. Courts often disagree with Federal governmental agencies on the meaning of laws. The Federal agencies often read statues expansively to give themselves more power (not that I necessarily disagree with this policy). It is the Legislature that gives power to the Executive agencies to create and enforce rules.

Examples of this activism include making private rights of action where a governmental statute does not mention one (such as allowing private rights of action in securites fruad cases in 10b-5 cases to promote the policy goal of policing securities fraud.), or reading the language of a statute expansivly (such as reading the Fourth Amendment to include protection from police unreasonably "siezing" phone coversations (which, reasonably, were not mentioned in the Constitution). Personally, I liked both of these acts of judicial activism.

In this case the Court, with support, said the rule- as promulgated by OHSA- contained an exception where placing the toilets within a 1/4 mile was not feasible. The court found that in this case following the rule was not feasible under the rule.

I would say this case is, if anything, the nasty opposite of judicial activism: courts looking to the literal language of a statute or rule rather than solving the problem in front of them guided by the policy concerns that promted the creation of the rule.

I generally would like to see stronger enforcement of OHSA regulations. I dont really know what the merits are of the case, or the conditions of the seed workers. The brief doesn't say, and I doubt nathan knows. nathan's summary, however, that the 8th Cir. "overrode a requirement by the Department of Labor that an agribusiness company provide toilets near where workers labored." is inaccurate.

I'm just hoping that the CoAs show the same lack of defence to DoL's new LM reporting requirements . . .

Why aren't the usual liberal politicians and wordsmiths complaining about this kind of social activism? Farmworkers don't have money. Gays have money, unions have money, trial lawyers have money. Farm workers don't. Democrats and Republicans are basically the same -- they just choose different folks to give them money. But if ya' don't got any, then nobody's listening.

Curiously, though, it was a conservative (Republican) Department of Labor who made the order to begin with.

As far as the technicality of the legal decision goes, whatever the reasoning, it's basic common human sense to have a toilet nearby. How is abortion included in a right to privacy and shitting is not?

Hm. Reading the decision over, it seems to hang weight on the fact that laborers were walking around (and thus were out of bathroom range for 20-25 minutes at a time), as opposed to (say) working in one place for a whole day out of bathroom range.

Is this different from a factory setting that only allows breaks every hour or two?

The same company that uses child labor and was sued for 'unapproved genetically modified StarLink corn that slipped into the U.S.
food chain more than two years ago'

http://www.gene.ch/genet/2003/Feb/msg00050.html

http://www.indianet.nl/cotseed.html

Arguing about 'terrain' "OSHA recognizes that there are some fields, located for example, on steep mountain sides..." in IOWA?

Note adequate drinking water not supplied, either: http://www.oshrc.gov/decisions/pdf_2002/02-0082.pdf