Colorado lawmakers just passed a bill that will make the state the fifth in the nation to require farms to pay overtime to their workers, and farm groups expect more state legislatures to follow suit.
The Colorado bill, named the Agricultural Workers’ Rights Bill and awaiting Democratic Gov. Jared Polis' expected signature, would require the Colorado Department of Labor and Employment to promulgate rules “providing meaningful overtime and maximum hours protections to agricultural employees.”
The bill is similar to laws enacted in California, New York, Maryland, Minnesota, and more recently, Washington to impose overtime requirements for farmworkers. Oregon lawmakers have been debating a similar measure.
California and Washington have the most comprehensive overtime laws, effectively removing the exemption that excluded farmworkers from the 40-hour overtime threshold mandated by the 1938 Fair Labors Standards Act.
Michael Marsh, president and CEO of the National Council of Agricultural Employers, said a bill to end the federal exemption is unlikely to pass this Congress despite President Joe Biden’s support, but Marsh predicted there would be an ongoing push "for the elimination of the exemption from overtime for agricultural workers ... on a state-by-state basis.”
In February, Democrats introduced a Biden-backed immigration bill in the House and Senate that would require farms to start paying overtime and provide an expedited path to citizenship for undocumented farmworkers. The 353-page measure, which is built on Biden’s immigration reform plan and called the U.S. Citizenship Act, effectively eliminates the exemption for farmworkers from federal overtime and minimum wage requirements that is in current law.
Bruce Goldstein, president of the advocacy group Farmworker Justice, endorsed the bill. “Employers in the agricultural sector should modernize their labor relations and build profitability based on treating farmworkers with the dignity and respect they deserve," said Goldstein. "Farming’s business models should not depend on exploitation and exclusions from labor protections.”
Farmworker Justice has advocated that states take action on overtime laws.
In Colorado, a local advocacy group, Project Protect Food System Workers, was one of the groups pushing for the state legislation. The group's website lists the Colorado bill as one of its three projects, saying it worked with state Sen. Jessie Danielson and Rep. Yadira Caraveo to get the Colorado Agricultural Workers' Rights Bill passed.
Project Protect Food System Workers also closely collaborates with Colorado Legal Services Migrant Farm Worker Division.
The final version of the Colorado bill states two representatives from Colorado Legal Services MFWD will sit on an agricultural work advisory committee made up of nine members, along with two current or former agricultural workers, two advocates of workers' rights, and three members representing agricultural employers.
The final bill was the result of negotiations and compromise between legislators, agricultural groups, and advocacy groups.
The bill originally would have required that farms pay overtime after 40 hours a week. Under the final bill, that threshold will instead be determined by the Colorado Department of Labor and Employment. That rulemaking process could allow more input from the ag industry, although the nine-person advisory committee will have only three members representing ag employers.
Zach Riley, senior director of public policy at the Colorado Farm Bureau, told Agri-Pulse, “The original text of the bill was rigid and punitive, now we believe that compromise can continue to bear fruit in the coming implementation of statute through rulemaking negotiations."
The Colorado Fruit and Vegetable Growers Association was also closely involved in negotiating amendments to make the bill more workable for farmers. For example, the group obtained some exemptions from hand-weeding restrictions that were included in the bill. The exemptions would apply to transitional organic farmers and farmers using mulch or plastic coverings. An agricultural worker grievance process was also modified in the final bill.
In Washington, the new overtime requirements were signed into law in May and welcomed by Biden.
"Agricultural workers in Washington and across the country have helped carry our nation through this pandemic — working long hours, often at great personal risk, to meet the needs of their communities and keep America healthy and well-nourished," Biden said in a statement issued by the White House. "These overtime protections will ensure that agricultural workers in Washington are paid for all of the vital work they do."
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Under the Washington law, the overtime threshold will lower each year until it reaches 40 hours in 2024. The law stemmed from a lawsuit brought against a dairy that could have resulted in Washington dairy farmers having to pay overtime retroactively.
In Oregon, an ag worker overtime bill that would have kicked in at 40 hours stalled in the legislature, largely because "it would have been the most aggressive overtime policy in the country,” Samantha Bayer, the policy counsel at Oregon Farm Bureau, told Agri-Pulse.
But she expects farmworker advocates to continue pressing for a state law. “I think it’s almost guaranteed that the conversation is going to keep happening and the work group is going to keep working on it.”
Bayer said Farm Bureaus in other states that have adopted these types of laws report that they are not resulting in more wages for farmworkers. "It’s actually resulting in hours capped. So the proposal that came forth wasn’t actually going to meet the very good-natured policy objective which was to improve the lives of agricultural workers," she said.
In New York, Gov. Andrew Cuomo signed into law a farmworkers bill in 2019, which, among other labor protections, created a 60-hour overtime threshold. The bill said the threshold would be revisited by a wage panel in a year, where the panel could lower the threshold or keep it the same. The board ultimately decided to postpone the decision due to the pandemic.
In California, farmers have been operating under a state overtime requirement since 2019. California’s law gradually implemented overtime pay, so that large farms will have a 40 hour overtime threshold by 2022 and small farms will follow by 2025.
Josh Roberts, a farmer in California's Salinas Valley, told Agri-Pulse that it is turning out to be less expensive to pay overtime to existing workers rather than hiring additional employees.
“The margins on farming are getting pushed out,” said Roberts, who grows conventional and organic fruits and vegetables, including lettuce, broccoli and strawberries. “So it’s incumbent upon us to use the most productive, stable labor force that we can find.”
Roberts said farmers in other states facing new overtime requirements are likely to discover it's also hard to hire additional workers or find housing for them. Now, he's trying to focus on keeping his current workers happy.
“We’d rather invest in our crews and see a declination of attrition and a higher year-over-year return rate than having to retrain and carry the overhead of too many people," he said.
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