Farmworker Advocates Say Proposed Overtime Rules Don’t Go Far Enough

Adolfo Hernandez Atilano speaks to a crowd at the Colorado State Capitol
During an Oct. 5 press conference outside the Colorado State Capitol, former farmworker Adolfo Hernandez Atilano spoke about his experience working in the fields and urged the Polis administration to adopt fair overtime standards for the agricultural industry. / Jessica Folker for Law Week.

Colorado’s farmworker bill of rights was supposed to correct a historical inequity that excluded agricultural workers from protections workers in other industries have enjoyed for nearly a century. But labor, immigrant and Latino community advocates say proposed rules for implementing the new law fall short of righting those New Deal-era wrongs.

The state legislature in June passed SB21-87, which granted agricultural workers the right to organize, take meal and rest breaks and earn the state minimum wage and overtime pay. It’s now up to the state labor department to come up with rules for overtime and other key provisions under the new law.

The Colorado Department of Labor and Employment on Oct. 1 released proposed rules that would phase in overtime pay for agricultural workers over the next few years. Starting in November 2022, overtime pay would be required for workers who work more than 60 hours per week. In 2024, the threshold would drop to 56 hours per week for small employers and “highly seasonal” employers during peak season. During the off season, the overtime threshold for highly seasonal employers would fall to 48 hours weekly.

Small employers are defined as those with fewer than four employees and less than $1 million in revenue. Highly seasonal employers are those with at least twice as many employees during the peak season. 

For employers that aren’t considered small or highly seasonal, the weekly overtime threshold under the proposal would be 54 hours starting in 2024 and fall to 48 hours in 2025. Agricultural employers that allow a third paid break of 30 minutes, rather than the typical 10-minute break, during shifts longer than 12 hours would be exempt from daily overtime requirements. 

For many of the groups that fought to get the legislation passed, the proposed overtime protections don’t go far enough. They’re asking the CDLE to adopt the 40-hour weekly and 12-hour daily overtime thresholds typical of most other industries.

“After the release of the proposed overtime rules last week, it’s clear that the struggle is far from over,” said Mike Cortez, executive director of the Colorado Latino Leadership, Advocacy and Research Organization, during an Oct. 5 press conference.

“The proposed rules will maintain an unjust environment where employers can continue overworking their employees, putting them at higher risk of injury and accidents,” Cortez added. “We are putting the lives of thousands of folks at risk by ignoring how critical overtime pay truly is.”

Jordan Garcia, immigrant ally organizing director with the American Friends Service Committee, also criticized the overtime proposal’s gradual approach to implementation. “Forcing agricultural workers to wait until the 2023 season to earn any overtime wages violates the promise that we did make to them and Colorado by signing the bill,” Garcia said, speaking at Tuesday’s press conference. “I believe that we can do better. I believe that we can get those protections to these folks sooner.”

Several of the speakers drew attention to the racist roots of farmworker exemptions. Black workers made up a majority of the South’s agricultural labor force when the National Labor Relations Act of 1935 and the Fair Labor Standards Act of 1938 were enacted, and those New Deal reforms were designed to exclude them. Today, 83% of agricultural workers identify as Hispanic and 75% were born outside the U.S., according to the National Center for Farmworker Health. Exclusion of farmworkers from overtime protections hurts communities of color, particularly Latino and immigrant communities,” CLLARO’s Cortez said on Tuesday.

However, lowering the weekly overtime threshold to 40 hours is unlikely to go over well with farmers and ranchers who say having to pay overtime will be a financial burden. In public hearings and written comments, several agricultural industry groups asked the CDLE to set the weekly threshold at 60 or even 72 hours. They say the seasonal and unpredictable nature of agricultural work requires a more flexible work week than other industries.

“Weather in Colorado can change at a moment’s notice, and many of these weather events require employees to work extra during a short time to protect and care for livestock and crops,” Colorado Farm Bureau President Carlyle Currier said in written public comments on the rulemaking. He added that flexibility is needed during the birthing season as “it is impossible to accurately predict when an animal will go into labor, or if there will be complications that will require human aid.”

During an Aug. 24 public hearing, Marilyn Bay Drake, executive director of the Colorado Fruit and Vegetable Growers Association, predicted that “stringent overtime rules” will lead to farmers going out of business, selling to developers or leaving the state.

“As you creep the tractor forward to stay ahead of your hardworking peach pickers, your thoughts go to the millions of dollars you could receive from developers, downstream water users, and billionaire investors for your family farm and water rights,” wrote Ewell Culbertson, an organic farmer in Delta, in public comments to the CDLE.

Farmers and industry groups also asked the CDLE to carve out overtime exemptions for farmworkers on H-2A visas as employers must cover housing, meals, transportation and other costs under the temporary worker program.

But farmworker advocates rejected the idea that agriculture is exceptional in its seasonal demands or unpredictability. Many hospitality and recreation employers are seasonal and still pay overtime, they note, though certain ski industry workers are exempt from weekly — but not daily — overtime requirements. And plenty of other jobs require long or unpredictable hours.

“There are many professions that continuously expect long shift hours to be a part of the nature of the job — for example, doctors and nurses, police officers, firefighters, construction workers and more,” said Stacy Suniga, president of the Latino Coalition of Weld County, speaking at Tuesday’s press conference. “Longer hours for these groups may be due to the […] community impacts or because it is just the nature of the work. Yet it is not suggested by anyone that these occupations be treated differently, nor are they subject to exemption from current wage laws.”

The CDLE will hold a public hearing on proposed wage and hour rules, including agricultural overtime requirements, on Nov. 1. The public comment period will remain open through Nov. 3 and the Division of Labor Standards and Statistics will adopt final wage-and-hour rules on Nov. 10.

There is a separate rulemaking process for new rules on agricultural labor conditions required under SB21-87. Proposed rules on heat illness and injury and access to service providers will be published Oct. 29 and final rules will be adopted Dec. 30.

Correction note: A previous version of this article said the public meeting where Marilyn Bay Drake spoke was Aug. 30, but the meeting was on Aug. 24. Law Week regrets the error. 

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