Non-English-Speaking Workers Express Coronavirus Concerns
Legal document translation services play an important role in light of COVID-19 employment-related litigation with some works are suing their employers for allegedly subjecting them to unsafe conditions during the coronavirus outbreak. We’ve blogged in the past about the employer’s responsibility to provide translation of Employee Handbooks, other documents and signs, and interpreting services in the workplace with multilingual workforce in order to effectively communicate with non-English speaking employees. The importance of this practice is even more compelling due to the staggering impact that COVID-19 is having on employment practices in the United States and around the world.
In Rural Community Workers Alliance v. Smithfield Foods, a group of individuals employed at a meat plant filed suit against their employer for failing to adequately protect them from the Coronavirus, or COVID-19. The plaintiffs, who were members of the Rural Community Workers Alliance (RCWA”), filed a complaint as well as a motion for a temporary restraining order and a preliminary injunction asking the court to order the defendant to provide the employees with masks, enforce social distancing, and increase the frequency of sanitization in the work and common areas, among other requests. In their complaint, the plaintiffs alleged that the defendant was not taking appropriate measures to protect its employees from the COVID-19 virus and brought state law claims for public nuisance and breach of duty to provide a safe workplace.
The defendant, Smithfield Foods, is one of the largest meat-processing companies in the world. Recently, some of its U.S.-based plants have closed due to an outbreak of COVID-19 among workers. The plaintiffs in this case work at a plant located in Milan, Missouri that did not have any known cases at the time the lawsuit was filed.
Meat Plant Files Motion to Dismiss
In response to these filings, the defendant filed a motion to dismiss, arguing that pursuant to the primary-jurisdiction doctrine, the court should defer to OSHA and decline to address these issues. Shortly thereafter, the President signed an executive order delegating authority over meat and processing plants to the Secretary of Agriculture to ensure that these operations continued with the CDC’s and OSHA’s guidelines. Accordingly, the defendant filed additional papers with the court arguing that the U.S. Department of Agriculture had jurisdiction in light of the President’s recent executive order. The defendant also submitted pictures of the plant along with a declaration of the plant’s COVID-19 policies and procedures.
After a court hearing conducted via teleconferencing, the parties filed supplemental briefs. The defendant submitted a supplemental brief which clarified the defendant’s leave of absence policy and provided further updates to the court on additional safety measures the defendant was taking to ensure its employees’ safety.
The plaintiffs then revised their request for injunctive relief upon conceding the fact that the defendant had implemented new policies and procedures following the lawsuit. The plaintiffs revised their request for injunctive relief and instead asked the court to order the defendant to: “1) make all reasonable changes to its “production practices,” including potentially lowering its line speeds, to place as many workers as possible at least six feet apart; (2) provide reasonable additional breaks to allow workers to care for their personal hygiene without penalty, including blowing their noses, using tissues, and hand washing; and (3) ensure that its policies do not require workers to come to the Plant to obtain COVID-19-related sick leave and take all reasonable steps to communicate that policy clearly to workers.”
Court Notes Defendant’s Use of Interpreters and Translated Signs
After reviewing the evidence, the court made certain findings of fact. First, the court noted that the defendant requires employees to undergo thermal screening before entering the plant, and if an employee exhibits one or two symptoms of COVID-19, they are sent home for 14 days with paid leave or until they test negative for the Coronavirus.
If an employee tests positive for the virus, the defendant then notifies and screens the employee’s close contacts. In order to ensure that employees are complying with COVID-19 safety policies and procedures, the defendant has a nurse and health clerk perform safety checks throughout the plant and communicates its health procedures to employees in various ways. For example, the plant posts signs relaying important information written in English, Spanish, and French and has a communications app which employees are able to access in their language of choice. In addition, the defendant has interpreters stationed at the plant to facilitate communication with non-English-speaking employees.
The court also noted that the defendant provides its employees with face masks upon entry to the plant each day and requires employees to wear face shields and nitrile gloves on the production floor.
Court Determines OSHA Has Primary Jurisdiction Over the Plaintiffs’ Claims
Before considering the merits of the plaintiffs’ claims, the court first considered whether the plaintiffs’ case should be dismissed or stayed pursuant to the primary-jurisdiction doctrine. The court explained that the primary jurisdiction doctrine allows a district court to refer a matter to the appropriate administrative agency for ruling even when the matter is initially cognizable by the district court. The court ruled that the primary-jurisdiction doctrine applied because whether the defendant’s policies were in line with OSHA’s guidelines fell squarely within OSHA/USDA’s jurisdiction. Even if the court did have jurisdiction over the plaintiffs’ claims, the court held that the plaintiffs had not met their burden of proof for a preliminary injunction. First, the court held that the plaintiffs’ argument that they could contract COVID-19 (which could result in serious illness or death), was too speculative a type of injury under the 8th Circuit precedent. The court explained that in conducting its analysis, it must determine that the plaintiffs would suffer “actual, imminent harm” if the injunction were denied. In finding that the plaintiffs could not establish an imminent threat or irreparable harm, the court explained that it could not conclude that the spread of COVID-19 was “inevitable” at the plant or unable to be contained. The court also held that the plaintiffs did not show that the balance of harms favored issuing the relief, that the plaintiffs did not show a likelihood of success on the merits, and that the public interest factor was neutral.
The case is Rural Community Workers Alliance v. Smithfield Foods, court No. 5:20-CV-06063-DGK decided on May 5, 2020 in the U.S. District Court for the Western District of Missouri, St. Joseph Division.
All Language Alliance, Inc. provides legal document translation services in all languages, multilingual ediscovery translation services, and remote and in-person legal interpreters in French, Somali, Amharic, Spanish, Tigrinya, Mandarin, Arabic, Russian, Cantonese, and other language for employment-related COVID-19 litigation and foreign language document review and certified translation for cross-border e-Discovery.
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