Sadly, Benjamin’s employment took his life. The battle is on in Benjamin v. JBS SA to ensure that his family has some meaningful remedy.
The plain facts
Enock Benjamin died of respiratory failure in the arms of his son as they waited for an ambulance. He was 70 years old. He was a Haitian immigrant and leaves behind a wife of 37 years, two children and a granddaughter. He was a union steward, UFCW Local 1776. Benjamin came down with a cough and took time off from work beginning March 27; he died at home a week later. These are the bare bone facts of Enock Benjamin’s life and death.
The claims about JBS’s decision to ignore pandemic safety guidance are equally stark. JBS allegedly:
- failed to provide adequate personal protective equipment;
- forced workers to work close together, much closer than Center for Disease Control recommendations;
- forced workers into cramped work areas, break rooms, bathrooms, and hallways;
- discouraged workers from taking sick leave and made them fear losing their jobs; and
- failed to test and monitor workers who may have been exposed to the coronavirus.
Even in good times, meat packing plants are notoriously dangerous, with more serious injuries than coal mining and sawmilling. According to a recent New Yorker article, the UFCW estimates that nearly 30,000 of its workers in the food and health-care sectors have contracted Covid-19, and that 238 have died.
The Benjamin complaint claims that meat processing workers believe that they were being sacrificed. A painful question hangs in the air: Why, and who is there to protect workers like Enock Benjamin?
If the facts are against you, argue the law
Counsel for JBS seems to have followed Carl Sandberg’s advice. (FYI, the next step is pounding the table and yelling like hell. It might be entertaining were it not so deadly and cynical.) Counsel for JBS has filed a motion in the Eastern District of Pennsylvania to have the case removed to federal court. The gist of JBS’s motion is that all this dreadful unfortunateness must be someone else’s problem.
Who protects workers?
JBS argues that the problem, if there was a problem at the JBS plant, was a federal issue and should have been referred to either or both the Department of Agriculture or the Occupational Safety and Health Organization (OSHA). Alternatively, if there is a legitimate wrongful death claim, the family’s remedy lay with the Pennsylvania Workers Compensation Act.
The Department of Agriculture prescribes rules for the operation of food processing businesses. Safety complaints generally do not lead to financial recovery for the plaintiffs. At best, they tend to result in improved rules for businesses. The process also tends to be extremely slow.
For example, worker advocacy organizations have filed civil rights complaints with the USDA alleging that meat processing companies, including JBS, have engaged in racial discrimination during the coronavirus pandemic. The USDA complaint will go through an administrative procedure and will ultimately be up to Secretary of Agriculture Sonny Perdue (yes, as in chicken) to resolve.
Much the same is true of OSHA. Under a proactive, labor-friendly administration, a call for an OSHA investigation may result in improved working conditions – otherwise, not so much.
OSHA is enforcing the CDC guidelines and conducting inspections in response to deaths in hospitals but not at other businesses, according to a memorandum released on April 13. Roughly 4,000 coronavirus-related complaints have been filed against employers that fail to provide safe workplaces, but the agency has not issued any citations or fines. Instead, OSHA appears to be encouraging voluntary compliance. JBS has apparently elected not to voluntarily comply with CDC guidance.
Enock Benjamin was covered by workers compensation insurance in Pennsylvania. Ordinarily, those covered by the state insurance system waive their right to bring lawsuits for work-related injuries. That’s the tradeoff. There may be an exception, however, where the employer has misrepresented or concealed workplace hazards. In any event, on June 15, JBS USA Holdings denied the Benjamin family’s workers’ compensation claim.
That appears to leave no remedy other than the wrongful death and survivor lawsuit filed by the Benjamin family. Of course, no financial recovery can replace what was lost when Enock Benjamin died.
The point is to establish accountability. Accountability is the first step in protecting workers. Enforcement of existing rules would represent another step forward. Without momentum, however, nothing may happen. Whether the lawsuit that could provide the momentum survives JBS’s efforts to have it dismissed is still in contention.