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Colorado’s minimum wage rules don’t apply to farm, construction and other jobs. But that might be changing.

A decades-old rule governing minimum wage means a wide swath of low-income employees don’t qualify for overtime pay, lunch breaks

Rafael Cueto Rios, left, stands with his wife and a group of workers at a news conference outside of the Colorado Department of Labor offices in downtown Denver on Wednesday, Aug. 28, 2019. The group was calling for Colorado's minimum wage laws to apply to everyone. (Jesse Paul, The Colorado Sun)
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There’s a whole class of low-wage workers left out of the protections offered by the state law that also raises the minimum wage each January.

For this group of employees, there’s no overtime pay, no meal breaks. They may even have to pay for work uniforms, tires and other business expenses. That’s because the Colorado Minimum Wage Order No. 35, which guides the Department of Labor and Employment, only applies to four types of workers: those with jobs in retail and service, commercial support, food and beverage, and health and medical. 

But not every occupation fits nicely in those four groups. Construction workers, farm workers, manufacturing employees and domestic home helpers fall outside the rules. Advocates, and some of the workers themselves, spoke out Wednesday during a preliminary hearing to urge the labor agency to update the minimum wage rules for the first time in decades. 

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“What I have to say here today is I think it’s absurd that we’re even having this conversation, in 2019, about not having all workers protected under the basic minimum wage order,” testified Eddie Bustamante, political director for Laborers’ International Union of North America Local 720. 

Bustamante said his crew of union members negotiate with employers to get a fair wage — starting salaries are around $19 an hour, plus health insurance, lunch breaks, time off and other benefits that make the wage livable. It’s the employers who hire nonunion workers that are the problem, he said. They aren’t required to abide by minimum wage rules. They can pay less and limit breaks, which the union says hurts public safety. 

Eddie Bustamante, Political Director for Laborers’ International Union of North America Local 720 testifies in front of Dept. of Labor and Employment officials in support of changing the state’s Minimum Wage Order law to require employers to offer overtime pay, lunch breaks and other worker protections to all workers. (Tamara Chuang, The Colorado Sun)

This controversy exploded earlier this year when, under new leadership, the labor agency began asking for comment on how the minimum wage order should be revised. The order is the state’s set of rules about overtime, breaks, deductions and who’s covered by them.   

“We put out a call for comments to hear from businesses and workers because we’ve been hearing arguments for change, from both business and labor, that certain definitions or rules need to be updated,” said Scott Moss, director of the Colorado Division of Labor Standards & Statistics, who said that apart for the wage increases, the order hadn’t been updated since 1998. “We’ve heard a lot of calls from both management and labor that there should be thought given to whether and to what extent changes are needed.”

Some of the comments, however, voiced opposition on any increase in the minimum wage, which wasn’t want the agency asked about.

At a news conference earlier in the day led by advocates for changing the minimum wage order, Rafael Cueto Rios said through an interpreter that for three months, he and his wife were paid by a construction company to clean up after drywallers and pick up metal scraps. 

“We would come in at 7, leave at 5 or 6, and the only break that we would receive was from 12 to 1 and even that was cut short every day,” he said. “It’s not fair that we continue to work and work and work without regard for our health, our well being. It’s a matter of safety.”

The current minimum wage order does exempt certain workers who make tips or commissions, are administrative employees or are professional workers in specific fields. 

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But advocates say the law should apply to everyone because it’s unclear who really qualifies for those four definitions of minimum wage jobs, said Adam Harrison, a labor and employment attorney at The Sawaya Law Firm in Denver. 

Construction workers just don’t fit into any of the four groups, he said. Nor do agriculture workers. 

And sometimes, even food workers are excluded. He represented an overworked employee who would move food from one spot to another but not serve food directly to people — two types of work mentioned in the minimum wage rule. The employer wouldn’t pay overtime. Sometimes they may not even pay the state minimum, although they would be forced to pay the federal minimum.

“It took a year to resolve the case solely because, in his situation, those two roles competed,” said Harrison, who settled the case out of court and won’t name the employer. “That entity did not give food directly to the eating public. But it did have to be licensed, or it was licensed and permitted for the handling of food and Colorado. So it contradicted itself.” 

Advocates also pointed to inequities that affect women and the lowest-paid workers more than others. Salaried employees are exempt from overtime, but they still make the same low wage even if they work more than 40 hours a week.

Nina DiSalvo, of Towards Justice, speaks at a news conference outside of the Colorado Department of Labor offices in downtown Denver on Wednesday, Aug. 28, 2019. (Jesse Paul, The Colorado Sun)

“Today, only 7% of Colorado workers are eligible for overtime pay, which is down from around 62% in the 1970s,” said Nina DiSalvo, a lawyer with Towards Justice, which organized the news event. “And without work overtime protection, the 40-hour work week is quickly eroding … It’s gig workers, it’s office managers, it’s food service managers, it’s retail team leaders, the nonprofit organizers. All of these people really have to work more than 40 hours a week in order to be professionally successful. And that’s not OK.” 

Towards Justice, and others, are supporting a rule change that pays salaried workers 2.5-times the minimum wage if they’re expected to work more than 40 hours a week. That translates to $62,400 in 2020, when the state’s minimum wage hits $12 an hour. If you earn less than that, you would be eligible for overtime pay, which is currently time and a half.

Moss, with the labor department, said that a preliminary new rule could be unveiled this fall. Several more public hearings would be scheduled before anything becomes final. The new law would go into effect on Jan. 1, 2020.

“I’ve been heartened by the magnitude of the response, getting hundreds of comments from Coloradans all across the state,” Moss said. “So we feel like we’ve gathered a tremendous amount of useful information from all perspectives.”

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