Proposed pay rules for ag workers fail to fulfill law’s intent, legislators say

Colorado farm and ranch owners warn SB-87 overtime rules could lead to major changes for industry

By: - November 2, 2021 11:48 am
Agricultural rulemaking protest

A woman wearing Día de los Muertos-inspired clothing claps her hands, while a woman behind her holds a sign reading “Overtime for agri workers.” The group Project Protect Food Systems Workers organized a vigil on Nov. 1, 2021, outside the Colorado Department of Labor and Employment’s Denver offices to honor workers and call for stricter overtime standards in agriculture. (Faith Miller/Colorado Newsline)

Colorado’s proposed rules on overtime pay for agricultural workers drew dozens of community advocates, farmers and ranchers to a contentious public hearing.

Project Protect Food Systems Workers, the group that spearheaded efforts earlier this year to set the changes in motion, held a Día de los Muertos vigil outside the Denver offices of the Colorado Department of Labor and Employment, where the hearing was held. Deceased agricultural workers and family members who had lived in Colorado were honored with mariachi music and colorful altars.

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Advocates aligned with Project Protect argue that farms and ranches should have to meet the same overtime standards as other types of employers. The agricultural industry is currently exempted from the state’s overtime pay and minimum wage standards, though businesses employing temporary workers on H-2A visas must comply with a federal wage requirement that is higher than Colorado’s minimum wage, and most businesses must pay the federal minimum wage to their workers who are not on visas.

Meanwhile, farm and ranch owners say that even requiring overtime pay after 56 hours, as proposed by the state under new wage-and-hour rules for highly seasonal work, could lead to major changes for their industry.

“We will see more consolidation, probably a shift more towards products that don’t require as much labor … and then I think we’ll also see more corporate control of the food system and less access to locally produced food,” Daniel Waldvogle, director of external affairs for Rocky Mountain Farmers Union, said in an interview.

The agriculture-focused labor rules under consideration were triggered by legislation that Gov. Jared Polis signed into law in June. Senate Bill 21-87 resulted from efforts by Democratic Sens. Jessie Danielson of Wheat Ridge and Dominick Moreno of Commerce City, along with Democratic Reps. Karen McCormick of Longmont and Yadira Caraveo of Thornton, to hold agricultural employers accountable to many of the same labor standards as other types of businesses. Colorado farms and ranches are currently exempt from state requirements to pay workers for overtime, but SB-87 required CDLE to set new rules that would apply to them.

mariachi
Denver mariachi band Los Viajeros performs at a Día de los Muertos event outside the Colorado Department of Labor and Employment’s offices on Nov. 1, 2021. (Faith Miller/Colorado Newsline)

CDLE’s recently proposed rules put in place a range of agricultural overtime standards depending on employer size and whether the job is seasonal.

From Nov. 1, 2022, through Dec. 31, 2023, however, the first year the proposed rules would be in effect, all agricultural employers would be subject to the same overtime pay standards. They would have to pay their employees time-and-a-half for any more than 60 hours worked in a single week.

Then, starting in 2024, small agricultural employers with fewer than four workers would have to start paying overtime after 56 hours. Highly seasonal employers — defined as those who for 22 weeks a year have twice as many employees as the rest of the year — would be required to pay overtime after 56 hours during peak seasons, or 48 hours otherwise. All other agricultural employers would have to pay overtime after 54 hours in 2024, and after 48 hours in 2025.

The Division of Labor Standards and Statistics must adopt a final version of the order containing the new agricultural rules by Nov. 10, and it will take effect on Jan. 1, 2022 (though some provisions, including overtime, won’t kick in until later).

Criticism from all sides

A group of 32 Democratic state lawmakers including Danielson, Moreno, McCormick and Caraveo are unhappy with the agricultural pay provisions included in CDLE’s proposed Colorado Overtime and Minimum Pay Standards Order, which was released last month. They submitted a public comment Thursday — one of hundreds on all sides of the overtime issue — that laid out their position in stark terms.

“As currently drafted, the proposed COMPS Order simply does not provide ‘meaningful overtime and maximum hours protections to agricultural employees,’ as required by SB 21-087,” the lawmakers wrote in a letter addressed to Joe Barela, director of CDLE, and Scott Moss, director of CDLE’s Division of Labor Standards and Statistics.

“As a result,” the letter continued, “the proposed COMPS order fails to manifest the true intent with which we passed SB-87.”

Top Democrats in statehouse leadership positions — House Speaker Alec Garnett, House Majority Leader Daneya Esgar, Senate President Leroy Garcia and Senate Majority Leader Steve Fenberg — did not sign on to the letter.

Agricultural rulemaking protest
People hold signs reading “People over Profit” and “Thank You Farmworkers” outside the Denver offices of the Colorado Department of Labor and Employment on Nov. 1, 2021. (Faith Miller/Colorado Newsline)

Moss told Newsline in September that workers appeared to have a range of opinions on the new pay standards based on outreach the state had done up to that point.

Project Protect Food Systems Workers has raised concerns about several “listening sessions” CDLE held around the state in hopes of getting feedback from workers that would inform the rulemaking process. The group’s network of promotoras, who are public health advocates for the agricultural communities where they live, helped provide food, supplies, education and resources to workers during the COVID-19 pandemic. They later helped to organize around and advocate for the passage of SB-87.

Promotoras from Project Protect’s Western Slope region, who attended a recent listening session in Delta, called it “disappointing to say the least.”

“Many workers told us (their employers) held a meeting a few days prior to the Delta listening session to communicate that the workers should say they do not want overtime,” the promotoras said in a public comment, posted Thursday, on the proposed rules. “Many of the workers believed this and are still scared. Many workers were not included. … Many of these employees who want to know about overtime had no way to voice their opinions or they are scared they may not be hired back.”

The unnamed promotoras pointed out that some of the workers cannot read or write in any language, preventing them from being able to submit anonymous written comments during the listening session.

Dolores del Campo lives in Fort Morgan and is part of Project Protect’s Promotora Network in northern Colorado, where many people work 10-hour or 12-hour shifts in meatpacking plants and cattle feedlots, she said. Del Campo was in Denver on Monday for the Día de los Muertos event and rulemaking hearing.

“We try to be their voice, because they are working,” del Campo said, standing outside CDLE’s offices in the chilly November afternoon. “Now they are working, and maybe they don’t have a good jacket. Maybe they have on … a hoodie, maybe, and they work in summer at 80, 90, 100 degrees, and they have to work all day. And sometimes they don’t have enough water for all day.”

“They don’t have all the support that other workers have, is why we are here,” she added.

Juan Panzo Temoxtle
An altar is decorated for Juan Panzo Temoxtle outside the Colorado Department of Labor and Employment’s Denver offices. Panzo Temoxtle died in a March 2021 accident while working at a dairy in La Salle. (Faith Miller/Colorado Newsline)

Rocky Mountain Farmers Union, an organization representing Colorado family farms and ranches, called for tweaks to the rules that would include an exemption from minimum wage and overtime requirements for employees with management responsibilities.

“There are numerous farms and ranches who employ one to two people who work year-round,” the organization explained in a public comment posted Thursday. Those workers often live on site and may receive benefits such as paid utilities, a vehicle and fuel.

“These employees contribute to physical labor and make management decisions such as when to move grazing livestock, when to fix fence or other infrastructure maintenance, when to plant, spray, cultivate or harvest and often supervise other workers, both seasonal and year-round employees,” the Rocky Mountain Farmers Union’s comment continued.

The Farmers Union also wants to change the definition of “small agricultural employer” from a business with an average of fewer than four employees to one that employs workers for up to 500 “man-days,” which are equivalent to one day of work by one employee. This change would make the rule “more transparent for employees and easier to achieve for employers,” the Farmers Union argued.

But Damien Thompson, a Denver co-convener of Project Protect Food Systems Workers, said the current proposed rules already fall short of SB-87’s intent.

The intent of the law was to “promulgate rules about overtime that are going to be significant and are going to be impactful,” Thompson said in an interview. “They haven’t done that, so we really need to see basically wholesale changes.”

Waldvogle, of Rocky Mountain Farmers Union, said the state should support the agricultural industry, too — by implementing policies that increase communities’ access to locally produced food and helping bring Colorado goods to new markets.

“Ultimately … we need to set policies that build an alliance between employees and employers by more competition within the marketplace so farmers and ranchers can receive more income,” Waldvogle said. “Having well-compensated employees is in agriculture’s best interests if they can afford to do that.”

Editor’s note: This article was updated at 2:25 p.m. Nov. 2, 2021, to include additional quotes from Dolores del Campo and Daniel Waldvogle.

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Faith Miller
Faith Miller

Reporter Faith Miller covers the Colorado Legislature, immigration and other stories for Colorado Newsline.

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