The Labor Commissioner’s Daunting Task

The sun was falling at the end of a long, hot day in June as a handful of farm workers gathered around Letitia Zavala’s truck near Zebulon in eastern Wake County. 

Zavala, an organizer for a migrant advocacy group, warned them about the dangers of working in the heat. She showed them a picture of Jose Arturo Gonzalez Mendoza, a Mexican migrant who died in a Nash County sweet potato field last fall. The temperature that day reached 97 degrees.

Next to his photo were the words “Ni una vida mas”–not one more life.

But just two weeks after Zavala’s warning, another migrant–Juan José Ceballos–died from heatstroke while working in Wayne County on a 101-degree July day.

The N.C. Department of Labor fined Mendoza’s employer $187,500, one of the largest penalties it has ever levied. The department cited multiple violations, including a lack of adequate water and breaks; the Nash County farm, Barnes Farming, is appealing. Ceballos’ death is still being investigated.

The Labor Department has a daunting task: protecting the safety and health of more than 4.4 million workers who toil in all kinds of environments–from farm fields to small businesses to corporate offices. And workplace fatalities have climbed in recent years. The Charlotte Observer found that a construction worker dies on the job every 10 days in North Carolina. Many of those deaths were preventable.

“When hard-working North Carolinians do not go home to their families because of a fatality that happened at work, that’s the Commissioner of Labor’s responsibility,” incumbent Josh Dobson, a Republican who is not seeking reelection, told The Assembly.

That responsibility soon will fall to one of two men running to replace him. Their race has received little attention in a crowded election year. But the job touches the state’s nearly 400,000 employers and everyone who works for them, as well as anybody who rides in an elevator or on a roller coaster. 

The choice couldn’t be starker.

Republican Luke Farley is a 39-year-old Raleigh lawyer who has represented businesses in disputes with the Labor Department’s Occupational Safety and Health Division for 14 years. “My sense of mission,” he said, “is to keep workers safe and healthy without bankrupting business in the process and [to] drive job growth.”

Democrat Braxton Winston, 41, is a former Charlotte city councilman. A stagehand, he’s a union member in a state with the second-lowest rate of union membership in the nation. He says the choice for voters is between “a worker like them or … their boss’s lawyer.”

North Carolina is one of only four states that elects its labor commissioner, and it’s had only four since 1977. Republicans have held the office since 2000, with Cherie Berry serving five four-year terms. This year, with the incumbent not seeking reelection and workplace fatalities rising, the stakes may be higher than ever.

“This race is critically important not just to the labor movement but to working people,” said MaryBe McMillan, president of the North Carolina State AFL-CIO.

Dave Simpson, president and CEO of Carolinas AGC, a building industry trade group, called it “arguably the most important race statewide for business generally and construction specifically.”

Zavala’s group It’s Our Future isn’t involved in the commissioner’s race, but she said Labor Department policies are critical. “To farm workers who are exposed to the heat and pesticides and other risks,” she said, “it’s a matter of life and death.”

Vacant Inspector Jobs

In September 1991, flames from a grease fire shot through a chicken processing plant in the small Richmond County city of Hamlet. Panicked workers ran for the exits but found at least two of the plant’s seven exit doors locked. Twenty-five people died. 

Then-Labor Commissioner John Brooks acknowledged that his department hadn’t done a safety inspection in the entire 11 years Imperial Food Products had operated. The state later fined the company more than $800,000 for dozens of safety violations.

Brooks blamed the lack of inspections on a shortage of inspectors. Thirty years later, The Assembly interviewed survivors of the fire as well as Dobson, who said his department still struggles with vacancies.

“If there’s anything that keeps me up at night, that’s it,” he said. “Everything we do is important, but what our compliance officers do is most important.”

Today, 24 of the 122 compliance positions are vacant, Dobson said. So are five of the 39 slots for the people who inspect North Carolina’s nearly 32,000 elevators. Last year WRAL reported that nearly 5,000 elevators and escalators were overdue for safety checks.

The vacancy problem has been endemic in state government. The News & Observer reported in March that since the pandemic, state government vacancy rates have been as high as 25 percent.

Labor Department officials say the state often can’t compete with private industries, or even local governments, when it comes to salaries and benefits. At the same time, they say, more litigation over fines and penalties means extra paperwork for compliance officers who might otherwise be on work sites.

The result is fewer inspections. In the 2005 fiscal year, for example, the department conducted nearly 5,000 health and safety inspections. In the most recent fiscal year, it did 1,761.  

The drop has come as construction has soared. Employment in North Carolina’s construction industry grew nearly 14 percent in the last four years compared with 8 percent nationally, according to AGC of America, a national trade group. The Observer found that the fatality rate for North Carolina construction workers was 11.5 deaths per 100,000 employees in 2022, about 20 percent higher than the national rate. 

By some measures, the department is doing well with what it has. In their latest review, federal officials found the state’s worker injury and illness rate “well below” the national average. And it said the state responds to workplace complaints much faster than the national average. The report “documented that North Carolina has met or exceeded all goals and measures,” said department spokeswoman Erin Wilson.

Worker advocates generally applaud Dobson, particularly in comparison with his predecessor. “The department has improved under Commissioner Dobson’s leadership,” said the AFL-CIO’s McMillan. “For 20 years under Cherie Berry, the department really did nothing in terms of regulating or enforcing standards.”

Clermont Ripley, co-director of the Workers’ Rights Project of the North Carolina Justice Center, said, “One thing that made it difficult to work with Commissioner Berry is she described her constituents as the business community as opposed to the workforce. And we believe that the [commissioner’s] job is to protect the workforce and not … the business community.”

Berry told The Assembly, “I will let my 20-year record and the work of the professional, dedicated employees of my administration speak for itself. It was an honor to have the trust of the voters and serve for 20 years.”

At the time of the Hamlet fire, Paul Sullivan was a grad student in Chicago studying industrial hygiene. He came to North Carolina in 1993 to work in a department trying to improve under new leadership. Now he’s assistant deputy commissioner of the state’s Occupational Safety and Health Division. 

“I wish we had more inspectors,” he said. “But even with the reduced staff, we are better now at utilizing our limited resources to identify and inspect the establishments and industries where we are needed.” 

Starkly Different

The differences between Farley and Winston were on sharp display last January in a cramped meeting room at the Department of Labor.

They had come for public hearings on new regulations proposed by worker advocates. One was specific to migrant workers and those who employ them; the other would have applied to most other workers. 

Both called for masking, distancing, and other measures in the event of another airborne infectious disease outbreak like COVID-19. One by one, speakers took a spot at the head of a long conference table.

“Why are we still debating COVID workplace mandates in 2024?” Farley said. “There needs to be a clear message to the people that want to take our liberties and control our lives and our businesses that we will not give an inch. Ever. We will fight you every single step of the way.”

Farley said the proposed migrant rule would place additional burdens on farmers and that “masks are virtually useless in preventing the spread of COVID.” (Physicians and scientists generally say face masks reduce the spread of COVID.) Farley said the rule “turns over North Carolina sovereignty to a globalist organization, like the World Health Organization. … It’s in the pocket of China.”

Winston favored both proposals. He blamed the Trump administration for its handling of COVID. “They were supposed to be the quarterbacks, and they fumbled the ball,” he said. “There were no plans in 2020, and we all suffered because of it.”

He said the state needed “a playbook for responsible actions we can take to mitigate the harmful effects of a health emergency. … We should use what we have learned over the recent years.”

Dobson rejected the proposed rule changes in March.

Winston takes an expansive view of the commissioner’s role. He calls it the “whole worker” approach. That includes working with private and public partners to address issues such as transportation, affordable housing, and poverty.  This summer he teamed with Democrat Mo Green, who’s running for state Superintendent of Public Instruction, to call for more access to affordable childcare.

“So whether that’s transportation and transit, the way we build our neighborhoods, bridging the digital divide–these are all things we have to consider as we try to stay competitive as a state,” he told The Assembly. “That we’ve had a Department of Labor that hasn’t had that lens is really a detriment to the health and safety of our state’s workforce overall.”

Farley, who defends small businesses cited by the Labor Department, would work with employers on the front end to avoid rules violations. He said, “It’s about changing that perception of the … department into an agency that wants to collaborate and help instead of just punish and criticize. You know, a finger-wagger.”

Asked how he’d reassure workers he’d have their back, he said, “I’ve been on job sites where people have been killed.” He said he’s seen photos of “people crushed to death. … I’ve seen legs amputated from explosions. I’ve seen arms crushed in machinery. I say all that to say you can’t be a human being and not have that affect you deeply.”

Heat Regulations Disputed

Heat regulations are another fault line between the candidates. On his website, Winston alludes to Jose Arturo Gonzalez Mendoza, the Mexican migrant who died from heat-related causes in Nash County last fall.

All employers and their workforces should have heat-safety regulations, Winston wrote. “While all industries deserve this, it is especially pertinent to labor-intensive industries such as agriculture, construction, and landscaping,” he wrote. “Work can be tough, but it should never be deadly.”

In July, the Biden administration released a proposed federal heat standard. It calls for escalating steps triggered by temperature. For example, at 80 degrees it would require things like cool drinking water and break areas “with cooling measures.” At 90 degrees, it calls for mandatory rest breaks every two hours.

Last fall, Farley addressed the proposal after the federal Occupational Safety and Health Administration released an initial framework.

“The push for a heat regulation is part of a larger liberal agenda that conveniently dovetails with climate alarmism,” he wrote in the Carolina Journal. “Of course, we need to protect workers from the heat, but we don’t need a new set of burdensome regulations to do it.”

He argues that the federal Occupational Safety and Health Act’s “general duty clause” already offers protection. It calls for workplaces “free from recognized hazards … causing or are likely to cause death or serious physical harm.” The state Labor Department has used that provision to address heat-related hazards. 

“So this idea that without the heat-stress standard workers are unprotected from the heat is just not true,” Farley told The Assembly. “From day one … I will work with North Carolina-based stakeholders–both workers and job creators–to come together on a solution that’s tailored to the needs of our state.”

Winston backs a federal standard but wants stronger state rules.

“Since the federal rules will cover conditions for the nation as a whole, they won’t necessarily address the specific conditions on the ground [in North Carolina],” he says. “The current status quo is not sufficient.”

N.C. Chamber Pivots

It was a viral moment that catapulted Winston into the spotlight.

In September 2016, Charlotte erupted with protests over the police shooting of a Black man named Keith Lamont Scott. Winston joined the protests uptown. A photo captured him standing shirtless, fist raised, dreadlocks tied behind his head, facing a line of helmeted riot police. He was among dozens arrested.

A year later Winston, a graduate of Massachusetts’ Phillips Academy and Davidson College, was elected to the Charlotte City Council. During the George Floyd protests in 2020, he was arrested again. In 2022, colleagues voted him mayor pro tem. He did not run for reelection in 2023. 

Both charges against Winston eventually were dropped. But Farley mentions them in describing their differences.

“My opponent is an activist and he is a politician,” he told The Assembly. “[He] made a name for himself protesting in the streets with the kind of people who looted and rioted and shut down small businesses and put people out of work.”

He said Winston has been “arrested multiple times.” He provided a list that includes several traffic offenses such as speeding and driving with a suspended license. 

It also includes an incident involving Winston’s former wife. In 2022, she was arrested on charges of simple assault against him. She in turn sought a criminal summons claiming he had assaulted her. He was never arrested and the charge was dismissed. He won a domestic violence protection order against his ex-wife. It’s been renewed and is still in effect. 

Farley graduated from the University of North Carolina at Chapel Hill and earned a law degree from Wake Forest University. He’s a member of the Associated Builders and Contractors of the Carolinas as well as the construction law divisions of the American and state bar associations. He was endorsed by former Commissioner Berry.

Farley and Winston have some things in common. Each has three children; each spent part of their early lives in Onslow County. But their differences are pronounced. That’s something the N.C. Chamber, a statewide pro-business group, took note of–albeit belatedly.

After Farley defeated a better-known GOP lawmaker in his March primary, the group issued a news release calling his victory and that of Michele Morrow, his party’s nominee for superintendent of public instruction, “a startling warning of the looming threats to North Carolina’s business climate.”

It called Farley a “far-right candidate whose main issues were banning vaccine requirements for state employees and ‘making elevators great again,’” referencing his campaign slogan. Later, it revised the statement.

“Moving into the general election, we see an opportunity to work well with Mr. Farley should he be elected commissioner,” it said later. “A self-described ‘reluctant regulator,’ Mr. Farley is a sharp contrast to his opponent.”

Falling 48 Feet

On a rainy December afternoon in 2022, Gabriel Strathern was cleaning gutters on the roof of a home in the Governors Club community in Chapel Hill. He slipped and fell 48 feet onto a concrete pad. Strathern was 29, a single father raising an 18-month-old son.

His death was one of 42 in the state that year that resulted from falls, up from 29 the year before, according to the U.S. Bureau of Labor Statistics. It said falls, slips, and trips were the second-most frequent cause of workplace fatalities in North Carolina in 2022.

Labor Department records show Strathern’s employer, Squeaky Clean of North Carolina Inc., had never been inspected.

The department fined his employer $17,051 for, among other things, improper equipment and failing to provide protection systems and adequate safety training. Strathern’s father, Devin Gilgor, called it “a slap in the face.” He spoke to Dobson and other Labor Department officials. Though complimentary of the commissioner, he remains frustrated.

“Every time I would question a way to be more proactive, the answer I got was, ‘We do not have enough people working in the field to do that. Every office is understaffed,’” Gilgor told The Assembly.

“My son is gone and I can never change that. But I can take my grief and anger and target it to prevent another family from having this type of pain.”