Labor coalition sues Polis administration over agricultural overtime pay rules

Former farmworker disadvantaged by ‘disparate overtime protections’ for industry, lawsuit says

By: - April 7, 2022 5:15 am
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)

Last fall, advocates for Colorado farm and ranch workers urged the state to adopt strong overtime protections for the agricultural sector. They argued that proposed overtime rules from the Colorado Department of Labor and Employment didn’t fulfill the requirements of a new state law.

But CDLE’s Division of Labor Standards and Statistics adopted rules in November that did not significantly expand agricultural workers’ overtime pay beyond the original proposed rules — despite an appeal from 32 Democratic state lawmakers.

Now, former farmworker Patricia Vital Rangel and Colorado Jobs with Justice, a coalition of labor and community organizations, are suing Gov. Jared Polis; CDLE and its executive director, Joe Barela; and the Division of Labor Standards and Statistics and its director, Scott Moss. Plaintiffs seek to demonstrate that the current overtime rules for agricultural workers violate state law and the Colorado Constitution.

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“Labor laws, including overtime standards, are at the root of economic security and justice,” Jenifer Rodriguez, an attorney with the nonprofit Colorado Legal Services, said in a Monday statement. Rodriguez is representing Vital Rangel in the lawsuit, filed Feb. 7 in Denver district court.

“For generations we have seen that lax workplace-related standards rooted in racism negatively impacts worker health and economic well-being,” she added. “It is profoundly disappointing that Colorado has continued this legacy.”

Senate Bill 21-87, which Polis signed into law in June, required CDLE’s Division of Labor Standards and Statistics to adopt new rules dictating overtime pay for workers on the state’s farms and ranches. Previously, the state had exempted agricultural employers from all overtime pay requirements. Most industry associations opposed SB-87, arguing that paying agricultural workers overtime would devastate Colorado’s farms and ranches, which rely on employees who frequently work 60 hours or more per week.

Labor laws, including overtime standards, are at the root of economic security and justice.

– Jenifer Rodriguez, attorney with Colorado Legal Services

The final overtime rules were adopted in November. For the first year the new rules are in effect — from Nov. 1, 2022 through Dec. 31, 2023 — agricultural employers must provide overtime pay at one-and-a-half times the regular rate for more than 60 hours worked in a single week.

Then, starting in 2024, “highly seasonal” ag employers must pay overtime for more than 56 hours worked in a single week during the busiest 22 weeks of the year. The rest of the year, highly seasonal employers must provide overtime pay after just 48 hours. Farms can define their 22-week peak seasons based on their individual needs.

Agricultural employers that are not highly seasonal must pay overtime after 54 hours starting in 2024, and after 48 hours beginning in 2025. However, small agricultural employers, whether seasonal or not, have a higher threshold of 56 hours for overtime pay in 2024 only. The final order defines small employers as those with an average adjusted gross income of $1 million or less over the three years preceding 2024.

The lawsuit filed in February described the new overtime rules as an “unreasonable and unconstitutional failure to fulfill [the state’s] statutory obligation to establish equitable overtime standards for agricultural workers.”

Crafted during Jim Crow

According to the 2019 American Community Survey 5-year Estimates, people employed in fishing, farming and forestry occupations in Colorado earn a median of $25,400 a year, compared with $41,300 for all occupations. State laws exempt the agriculture industry from more stringent overtime protections that apply to other professions.

“The exemption of agricultural workers from Colorado overtime protections is based on [a Fair Labor Standards Act] exemption crafted during the Jim Crow era, when most farmworkers who fell under its reach were Black, Southern and had virtually no political power,” the lawsuit says, referring to the 1938 federal law that established minimum wage and overtime protections. “In order to appease the Southern Democrats and obtain their support for the FLSA and other New Deal legislation, President Franklin D. Roosevelt agreed to a carve-out in these laws for agricultural workers, who at the time were predominantly Black.”

The delayed timeline for agricultural overtime rules to kick in — and the continued disparities between agricultural workers and other types of employees, who get overtime pay after 40 hours — represent “a monumental disappointment for workers who have long been excluded from overtime and other basic labor rights enjoyed by other workers in the state,” Pamela Resendiz Trujano, the executive director of Colorado Jobs with Justice, said in a statement.

Lawyers from Denver-based advocacy group Towards Justice, DC-based group Farmworker Justice and Project Protect Food Systems Workers, a coalition of organizations that worked to pass SB-87, are representing Colorado Jobs with Justice in the lawsuit.

The other plaintiff, Vital Rangel, lives in Commerce City. Until recently, Vital Rangel worked harvesting vegetables in northeast Colorado. She “would actively seek employment in the agricultural industry if such jobs were available at the wages and working conditions that were not adversely affected by the disparate overtime protections for agricultural workers,” the lawsuit states.

No response had been filed with the court by Polis, Barela, CDLE or the other defendants in the lawsuit as of Tuesday.

Polis spokesperson Conor Cahill told Newsline in an email that the governor’s office wouldn’t comment on pending litigation.

Cher Haavind, CDLE’s deputy executive director, provided a similar response. Rather than comment on the pending lawsuit, Haavind provided a link to the state’s published guidance on overtime and other labor rights and responsibilities.

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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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