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Margarito Moreno, center, and other migrant workers harvest Talbott Farmsgrapes before a hard freeze near Palisade, Colo., Thursday, Oct. 10, 2019. (Barton Glasser, Special to The Colorado Sun)

A new overtime pay rule for Colorado agricultural workers doesn’t go far enough, according to a coalition of groups that helped pass this year’s sweeping expansion of labor rights for people who work on the state’s farms and ranches.

The final rule should have given farm workers the same overtime benefits as workers in other industries, said Hunter Knapp, development director for the advocacy group Project Protect Food Systems Workers. Instead, the regulations, issued by the Colorado Department of Labor and Employment, reflect “the perspectives of the agricultural industry rather than the perspective of workers shared throughout the rulemaking process,” he said.

Starting in January 2022, Colorado farms, ranches and other agricultural businesses must pay their workers at least minimum wage, which in Colorado will be $12.56 an hour. Currently, agricultural businesses are only required to pay federal minimum wage, $7.25 an hour.  Businesses must begin paying overtime starting in November, with the regulation fully phased-in by 2025.

CDLE adopted the new regulations last week as part of the implementation of Senate Bill 87, which also grants farm workers the right to unionize along with new protections for working in heat and other dangerous conditions. 

Democratic lawmakers punted regulations surrounding overtime rules to the Polis Administration instead of trying to get them written into law as part of a compromise to get the contentious bill passed earlier this year. The measure required workers get “meaningful overtime” but largely left it up to CDLE to decide what that means. 

The rule released Thursday would phase in overtime pay, equivalent to time-and-a-half, over a few years, with farm workers receiving overtime after working 60 hours a week starting in 2022. All employers, except highly seasonal employers during peak season, will be required to pay employees overtime after 48 hours a week by 2025.

The standard should instead mirror what workers in other industries already receive, said David Seligman, executive director of the nonprofit law group Toward Justice. 

“The exclusion of agricultural workers from the 40-hour a week overtime is an injustice that has persisted for far too long,” Seligman said. “It’s disappointing, but we look forward to continuing that fight.” 

Industry groups that were opposed to the legislation say the regulations don’t do enough to insulate vulnerable businesses. 

The final rule largely eliminated an overtime exemption in a draft proposal for small employers. Several farm operations and industry groups also requested that temporary migrant workers be exempt, arguing those workers, who make up 10% to 15% of farm workers in Colorado, aim to work as many hours as possible before returning to their home country.

The final regulations require both minimum wage and overtime pay for migrant farm workers. 

Carlyle Currier, president of the Colorado Farm Bureau, said the group worked closely with the labor department and saw some of their suggestions reflected in the final rules.

“But we continue to be disappointed with the low overtime thresholds that will be unworkable for almost all farms and ranches,” said Currier, a rancher in the town of Molina on the Western Slope. “Ultimately, these rules will hurt farm employers who are unable to pay overtime and make Colorado agriculture less competitive because employees will want to work in other states where they can work more hours.”

While some of the compromises made during the rulemaking process are disappointing, the measure still provides a major expansion of rights for Colorado agricultural workers, said state Rep. Karen McCormick, a Longmont Democrat who was a prime sponsor of Senate Bill 87. 

“The overtime rules are the product of compromises and CDLE’s extensive work to hear and incorporate input from employees and employers across Colorado, and I am grateful they included changes I suggested,” McCormick said in a written statement. “The overtime protections now provided will go a long way towards making working conditions better for these workers.” 

Farm workers have been exempt from overtime pay under Colorado and federal law since the creation of the Fair Labor Standards Act in 1938. The law was written to exclude Black field workers in order to win the support of Southern Democrats. Workers at small- to mid-sized farms have been exempt from minimum wage laws since federal wage law was enacted, said Scott Moss, Director of the Division of Labor Standards and Statistics that oversaw the rulemaking. 

The new protections would affect an estimated 40,000 to 50,000 Colorado farm workers, Moss said. 

“This levels the playing field for workers who were excluded from basic protections for too long, and we’re proud this places Colorado as one of the top states for agricultural worker protections,” he said. “And we are proud we could accommodate very legitimate requests from industry.”

Debate over overtime exemptions 

In addition to the new overtime regulations, the new rules require that starting next year agricultural workers have additional protections against long work days.

That includes a mandate that employees who work more than 12 hours get an extra break and a requirement that workers who put in more than 15 hours in a day will receive an extra hour of pay on top of their hourly wages and overtime. 

Moss said the intent is to incentivize employers to limit instances where people are working long hours. 

Knapp said there’s a simpler solution: grant agricultural workers overtime pay after they have worked 12 hours a day. 

“It’s sort of a step in the right direction, but it also needlessly complicates the issue when we already have a system where people get time-and-a-half after 12 hours,” Knapp said. “There’s no need to come up with a new system for agriculture.”

The sun rises over a crew of farm workers as they prepare to clean a corn field of its 2007 Olathe Sweet Sweet Corn crop Monday morning July 16, 2007. (William Woody, Special to The Colorado Sun)

Workers will receive overtime pay after working 60 hours a week starting in November 2022. In 2024, that threshold falls to 56 hours for workers employed by highly seasonal employers and small employers, and 54 hours for other businesses. Small employers are defined as companies that employ less than four employees on average over three years, or bring in an average adjusted gross income of $1 million a year or less. 

In 2025, all employers must pay overtime after a worker has put in 48 hours. The exception is for “highly seasonal” operators who operate up to 22 weeks during peak seasons and have at least twice as many employees compared to the rest of the year. Those companies must pay overtime after 56 hours during peak seasons, and after 48 hours during other times of year. 

Range workers, employees at livestock companies who make managerial decisions and relatives working at family-owned farms are exempt from the overtime pay requirements. 

The final regulations issued by CDLE eliminated a proposed exemption that would have capped the threshold for overtime pay at 56 hours for small employers. 

Dan Waldvogle, director of external affairs for the Rocky Mountain Farmers Union, argued the exemption would have provided much-needed flexibility for small operators. 

“We were hoping to see a balance struck where there’s a threshold that’s high enough that farms and ranches can absorb that cost without having to limit hours or change practices, but low enough to provide some level of meaningful overtime,” Waldvogle said. “That balance isn’t quite struck here.” 

“There will be a breaking point when farms and ranches cannot afford those costs,” he added.

MORE: How is Colorado’s new farmworkers’ rights bill being received by migrant farmworkers? With a shrug.

The final rules tried to make up for that by expanding the types of relatives employed at family farms who are exempt from overtime pay requirements, Moss said. 

“We received a number of legitimate comments and suggestions to not treat workers of very small farms differently … and that we shouldn’t un-level the playing field based on employer size,” Moss said. “We thought it was fair to (recognize) small farms that span extended families, too.”

Advocates like Knapp eventually want to see that all farm workers are able to receive overtime after a 40-hour work week or after a 12-hour work day, without any exemptions based on employer size or industry. 

Knapp and Waldvogle also share concerns that the regulations are too complicated and will be difficult for businesses and workers to interpret. 

“The challenge here is we really need rules that are straightforward and easy to comply with for employers, and transparent so workers can feel confident they’re fairly compensated,” Waldvogle said. “And these rules are quite complicated.” 

Groups seeking to challenge the rules could file a lawsuit. 

Other regulations still in the works

A few key regulations stemming from the passage of Senate Bill 87 have yet to be finalized. 

CDLE has proposed draft rules regulating working conditions, including protecting workers from illness, injury and working in extreme heat, and will hear public feedback at a 3 p.m. hearing Dec. 9. Final regulations must be adopted by Dec. 30. 

The Department of Agriculture will hold a public hearing on proposed regulations for hand-weeding at 1 p.m. on Nov. 30. 

Colorado joins a handful of other states that provide overtime protections for farm workers. California and Washington state are currently phasing in laws that will require farm workers to receive overtime pay after working 40 hours a week. A dozen other states also allow farm workers to unionize.

Thy Vo is a freelance journalist and former Colorado Sun staff member. Twitter: @thyanhvo