Agricultural workers would be able to form unions, earn minimum wage under Colorado bill

In the San Luis Valley — where Luis Murillo works as a regional organizer for a COVID-19 response network — potatoes, mushrooms, lettuce, carrots and canola fuel the economy, sustaining agricultural businesses and hundreds of farm workers.

Murillo oversees a group of 16 health equity workers, known as promotoras and promotores, from communities across the Valley. They are part of the Promotora Network of Project Protect Food Systems, a coalition of immigrants, farmers, academics, activists and workers from all over Colorado.

Key to the promotora model is the idea of elevating trusted leaders to advocate for health equity within their own communities. Throughout the pandemic, promotores with Project Protect Food Systems have helped educate people working on farms and ranches, and their family members, about COVID-19. They brought food boxes, hand sanitizer, gloves and other critical supplies, their efforts funded in part through federal coronavirus relief legislation.

Agricultural employees across Colorado farming and ranching industries are mainly migrants, H-2A temporary visa holders or seasonal workers. Advocates say the promotora model has been crucial throughout the pandemic in overcoming language barriers and resource gaps.

Now, Murillo and other regional organizers and promotores with Project Protect — from the orchards of the Western Slope to the cattle ranches of Northeast Colorado — are bringing their advocacy to the state Legislature.

Senate Bill 21-87, which would make sweeping changes to Colorado labor law concerning agricultural workers, passed its first hurdle March 17 after more than three hours of witness testimony at the Senate Committee on Business, Labor, and Technology. Murillo was one of several regional organizers who testified remotely in support of the bill.

Among the most contentious measures: Allowing workers to unionize, paying them a minimum wage and starting a rulemaking process to set overtime pay standards.

The committee ultimately voted 4-3, along party lines, to refer the bill to the Senate Appropriations Committee.

From the ground up

Though SB-87’s supporters say it would correct decades of discrimination, the legislation was in large part shaped by the observations of community members like Murillo over the past year.

When he’s not helping to bring resources to farm workers in the Valley, Murillo works as a middle school principal in the town of Center. When the pandemic first hit, he got started working in health equity by mobilizing a team of parent volunteers. They worked to distribute videos, starring Murillo, through WhatsApp and Facebook with vital health information about COVID-19 for Center families.

“I happen to be a 6-foot-9 Latino in a small town, and I’ve been here for 18 years — so, you know, I have some credibility or people recognize me,” Murillo said.

Next, Murillo and his team in Center made phone calls to community members.

“We found that people were more prone to pick up a phone call when it’s someone they knew rather than just random people calling you,” he explained.

The final phase was knocking on doors and distributing information, masks and gloves. When Project Protect Food Systems asked Murillo in the summer to join the statewide coalition’s coronavirus response team as a regional organizer, he got on board.

“What was I guess appealing to me was the chance to expand what we did in Center to the whole San Luis Valley,” Murillo said.

Basing their pandemic response efforts off of Murillo’s work in Center, five other regional organizers overseeing two dozen promotores and around 40 outreach workers brought masks, gloves, sanitizer, food boxes, winter clothing and COVID-19 testing to agricultural communities across Colorado in 2020. Through one-on-one conversations, promotores also collected detailed data on agricultural workers’ needs in each region of the state.

Their work continues as they lead efforts to help agricultural workers get COVID vaccines.

Murillo loves the vibrant culture of the San Luis Valley, where generations of farmers have worked the land. But he also sees a need for systemic change in Colorado’s agriculture industry.

In January, he said, he lost a 13-year-old middle school student. The girl, Lizbeth, lived in a mobile home in Center.

“They ran several electrical heaters,” Murillo recalled in an interview. “The mother was working. We at the school were on a hybrid model of learning. She was at home trying to learn, taking care of her two little siblings (when) the house caught fire.”

While Lizbeth was able to rescue her siblings, “she just inhaled too much smoke and didn’t make it out,” Murillo said. “So these are the stories I have in my head.”

“My hope would be that the mother would … be able to provide space that is warm enough, so that they don’t have to run as many electric heaters as they had in the house, which is what caused the fire to start,” Murillo added. That might be possible if she could earn enough to “live with dignity and provide something better for her family.”

At the committee hearing, Murillo told lawmakers about Lizbeth while other public health workers with Project Protect spoke about problems in their own, greatly varied agricultural communities.

Angeles Mendez, the regional organizer for the Western Slope, spoke of an H-2A visa worker who had not been allowed to take water breaks. The worker later had to raise money for an emergency surgery to remove a large kidney stone, Mendez said.

Soraya Leon, a promotora who brings resources to farm workers in northern Colorado, told the committee that workers in her region labor for six to seven days a week, 12 to 14 hours a day, and do not earn enough money to afford basic health care.

SB-87 is shaping up to be a bitter political fight, as those who testified in opposition made clear. Farmers and herders from across the state spoke of financial burdens that could put them out of business. They contested the advocates’ testimony, saying that workers were in fact treated fairly in Colorado. The state’s major farming and ranching associations oppose the bill, and it’s likely to see additional changes as it continues to move through the Legislature.

Likewise, Kate Greenberg, the state’s commissioner of agriculture, said the Colorado Department of Agriculture “cannot support the bill as introduced, given how far it goes.”

“It is essential that we don’t put Colorado producers at a disadvantage to producers in neighboring states,” Greenberg told lawmakers on the Senate Business, Labor, and Technology Committee.

Big changes for ag producers

SB-87 is looking to be one of the more controversial bills moving through the Legislature this year, especially as tensions build over the lack of common ground between city dwellers and rural Coloradans — the oft-lamented “urban-rural divide.”

“It is my hope that … the agricultural industry can embrace the idea of ending the exploitation of the workers that they depend on,” state Sen. Jessie Danielson, a Wheat Ridge Democrat and SB-87’s prime sponsor, said in an interview after the bill was introduced.

“We’re talking about exploitation of people for profit,” she added.

For decades, the agricultural sector — despite contributing $46 billion a year to Colorado’s economy — has been carved out of state labor laws, barring workers on farms and ranches from collective bargaining rights.

SB-87, which also counts Democratic Reps. Karen McCormick of Longmont and Yadira Caraveo of Thornton as House sponsors, would remove an exemption for agricultural employers and employees in the Colorado Labor Peace Act. It would also allow agricultural workers to organize and join unions and engage in collective bargaining.

For the first time, it would set a minimum wage for workers on farms and ranches in Colorado and would direct the Colorado Department of Labor and Employment to start a rulemaking process for determining overtime pay standards.

SB-87 would mandate meal and rest breaks, clean water and safe housing for agricultural workers, and establish a process by which workers can file complaints with CDLE about unsafe working conditions. It would restrict use of the short-handled hoe — a tool that forces people working in fields to bend over, leading to back problems — and require employers to provide transportation to resources in nearby communities.

Other states including Texas, Arizona, New Mexico and California have already banned the short-handled hoe.

Another key provision would force employers to allow visitors in their workplace housing, after some promotores were barred from distributing COVID-19 supplies and information to workers.

If SB-87 passes, “I don’t think that anything’s going to change overnight,” said Fatuma Emmad, convening partner for Project Protect Food Systems as well as the executive director of Frontline Farming, a community farm and advocacy organization.

“We are coming out of a climate that has been really scary for a lot of people of color, a lot of immigrants, a lot of Latinx community,” Emmad said. “So I don’t think that people are just necessarily going to rise up, or something. But I think that this will start to build … relationships between farmers and ag workers who sustain them to create better farms and better food systems.”

A history of racist exclusions

To understand why agricultural workers are excluded from state labor laws, one must examine America’s history of slavery and systemic racism against Black people, Indigenous people and other people of color, said Nicole Civita, an ag lawyer, environmental studies instructor at the University of Colorado Boulder and policy lead for Project Protect Food Systems, which was instrumental in crafting SB-87.

“Our nation was founded on an economy that was land-based, largely extractive, and that extraction was performed by a class of enslaved humans who were brought here for the purpose of being able to carry out that work,” Civita said.

Post-Civil War, slavery was replaced by systems of sharecropping and tenant farming that closely resembled slavery for Black people working in agriculture.

In the 1930s, Congress passed two major pieces of federal legislation aimed at protecting workers’ rights: the National Labor Relations Act in 1935, allowing workers to organize, and the 1938 Fair Labor Standards Act, guaranteeing minimum wage and overtime pay.

“Those are the sort of foundational pieces of legislation upon which not only our federal laws are based, but really create the model for many state laws and how the state laws treat workers,” said Civita. Agricultural workers, however, were originally excluded from those laws.

“Scholars who study the history of this time and have really dug deep into the legislative history of how the definition of an employee was crafted recognize and explain that this is a remnant of trying to make compromises with the Southern Democrats, and this was kind of necessary to preserve the hierarchies and the power structures of Jim Crow in the South,” Civita said.

On the floor of Congress while debating the Fair Labor Standards Act, U.S. Rep. Jim Wilcox, a Florida Democrat, described a “problem of great importance in the South.”

“There has always been a difference in the wage scale of white and colored labor,” Wilcox infamously said. “You cannot put the Negro and the white man on the same basis and get away with it.”

That philosophy persists today in state and national labor laws that exempt agricultural labor, Civita argued.

The Fair Labor Standards Act was later amended to include minimum-wage protections for workers on larger farms. But the agricultural exemptions in the National Labor Standards Act and the Fair Labor Standards Act were replicated in state laws, and still exist in all but a few.

California had César Chávez, the legendary Chicano activist who led a boycott in 1968 that led to collective bargaining rights for the state’s farm workers. A total of 15 states, which also include Arizona and Idaho, give their agricultural workers the ability to unionize.

But more than 50 years after Chávez’s grape strike, Colorado farm workers — along with those in many other states — don’t have the right to form or join unions.

“Work in (agricultural) sectors remains some of the lowest-wage, least well-paid, least well-protected work in our entire economy, in our entire society,” Civita said. “It seems to almost always be premised on the idea that there’s this ever-replenishing underclass of people who are fairly desperate and will migrate to take those positions.”

A unique industry

Representatives of farmers, ranchers and herders say they shouldn’t be treated with a one-size-fits-all solution when it comes to issues such as minimum wage, overtime and housing standards. At the committee hearing, several farmers who testified in opposition to the bill said they paid their employees well and treated them fairly, and that some returned year after year.

They also spoke of struggles caused by the country’s increasing dependence on imported produce, making it difficult if not impossible for some Colorado farmers to compete.

“We want to pay $20 an hour. We want to pay overtime. But we need to be profitable,” said David Petrocco, a vegetable grower in Brighton who had planned to testify in opposition to the bill but said he was open to working with the bill sponsors on changes after hearing supporters’ testimony about worker mistreatment.

“I’m a little bit emotional, because that rocked me, it really did,” he said. “We’re very proud of our workers, and they love what they’re doing and where they are.”

Starting Jan. 1, 2022, SB-87 would set a weekly minimum wage of $553.60 for workers involved in livestock production, who often work far more than 40 hours a week because of the nature of the job. All other agricultural workers would have to be paid at least the state minimum wage, which is $12.32 per hour.

Petrocco said his workers are paid $14.82 an hour, which is the minimum wage set by the U.S. Department of Labor for temporary agricultural workers under the H-2A visa program.

The Colorado Wool Growers Association opposes the bill, because it would create a “confusing quagmire” of state and federal regulations, conflicting with the wage structure for H-2A visa workers, said Bonnie Brown, the association’s executive director.

Many workers in the sheep industry are part of the program, Brown said, meaning they’re authorized to be in the United States for up to one year before returning to their home country. The federal government already sets minimum wages and regulations for the H-2A program, but SB-87 would require higher wages for sheep and cattle herders.

“The other reason that we’re opposing Senate Bill 87 is that it ignores the important role that the Department of Labor and Employment has in protecting both workers’ and employers’ rights,” Brown continued. “The Colorado Department of Labor does have a rulemaking process to address these things … It kind of defies common sense why you would cement into statute such things such as break times,” which doesn’t allow for policy adjustments over time, Brown said, adding that compensation for workers often includes food and housing.

The state’s association of beef producers also opposes SB-87.

“The Colorado Cattlemen’s Association has indicated that we are willing to work on minimum wage, overtime, and other reasonable measures for employees and employers,” Terry Fankauser, the association’s executive vice president, said in a statement provided through a spokesperson. “Senate Bill 87 was a piece of legislation that our organization and all of agriculture viewed mere days before the session began. To our surprise, not only was the legislation more egregious than any labor law seen in Colorado to date, but also it will harm the mutually beneficial relationship between employee and employer that the vast majority of agriculture currently enjoys.”

Fatuma Emmad, of Frontline Farming and Project Protect Food Systems, said that some promotores began to face suspicion from agricultural employers once the bill was introduced. On one farm, for example, the employer for the first time wanted to inspect the boxes of food and supplies they were bringing for workers — even though the Promotora Network is focused on getting people help and information, not advocacy.

Emmad said that during stakeholder conversations with major players in the agricultural industry, some people pushed back against Frontline Farming, which grows food along the Front Range, works to bring healthy produce to low-income communities, and advocates for Black and Brown farmers.

“We’re constantly seeing people trying to say they represent farmers — and while we’ve told them we’re farmers and we’re the ones that have brought this bill forward — completely discounting us and believing that the only narrative is their Eurocentric narrative and they can exclude us in it,” said Emmad, herself the child of immigrants.

She said she was preparing for other potential retaliation, like canceled contracts.

“Any true movement that’s asking for basic rights against oppression, people aren’t going to be happy with it,” Emmad said.