New Bill Would Extend Rights for Organizing, Overtime Pay to Farmworkers

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Colorado lawmakers are considering a bill that would guarantee Colorado farmworkers the right to organize, earn overtime pay and take paid breaks — protections workers in other industries have enjoyed for nearly a century but that agricultural workers have long been denied.

SB21-087 would remove the farmworker exemption from the Colorado Labor Peace Act, giving agricultural workers the right to join labor unions and engage in protected concerted activity and collective bargaining.

The Democrat-sponsored bill would also eliminate farmworker exemptions from state and local minimum wage laws, establish rules for overtime pay and grant agricultural workers the half-hour meal breaks and ten-minute rest breaks that are standard in other industries.

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In addition to state laws, agricultural workers are excluded from federal protections such as the overtime pay provisions of the Fair Labor Standards Act and the right to organize under the National Labor Relations Act. Depending on the type of work and their employer’s size and labor needs, some agricultural employees are excluded from the FLSA’s minimum wage provisions as well.

“Farmworkers are among the most vulnerable and overworked workers in the state,” said David Seligman, executive director at nonprofit firm Towards Justice, one of several organizations supporting the bill.

“Their jobs are incredibly dangerous and incredibly grueling. Their hours are extreme. They’re also quite disempowered in the workplace,” Seligman said. The inability to engage in concerted activity has contributed to farmworkers being “incredibly fearful of coming forward to report abuses,” he added.

Seligman noted that agricultural workers have been especially vulnerable during the pandemic when it comes to health and safety risks. SB21-087 would require agricultural employers to provide extra protections and safety precautions for workers during a public health emergency.

The bill also authorizes workers to have visitors at their employer-provided housing without interference from others, allowing medical, legal and other service providers to visit workers where they live. According to Seligman, there have been many cases of employers prohibiting attorneys from entering their property to visit employees. “That can create really dangerous situations where workers are cut off from help,” he said. “So, we think codifying the right to access is pretty essential.”

If the bill passes, Colorado would join a handful of other states where agricultural workers have all or most of the protections that workers in other industries enjoy. According to data from the nonprofit Farmworker Justice, agricultural employees in California are on equal footing with other workers when it comes to overtime pay. In Hawaii, Maryland, Minnesota, New York and Washington, farmworkers are covered by overtime laws, but with some exceptions or limitations. A similarly small set of states have laws that expressly allow agricultural employees to collectively bargain and join unions, and in a few others, labor laws do not have farmworker exemptions.

The FLSA and NLRA were passed in the 1930s, when Black farmworkers were a majority of the South’s agricultural labor force, and agricultural workers were excluded from the New Deal legislation as a concession to southern Democrats. “By excluding agricultural and domestic workers, and therefore most southern Black employees, from federal protections, southern representatives guaranteed that the New Deal posed little or no threat to the Jim Crow South,” legal scholar Juan Perea wrote in the Ohio State Law Journal in 2011.

In a Feb. 23 statement, supporters of SB21-087 cited this racist history among the reasons farmworker exemptions should be abandoned. “The origins of these exclusions, which go back decades, are explicitly racist—originally part of an effort to exclude Black workers from the New Deal’s most important labor protections,” said the statement from the Colorado Farmworkers’ Rights Coalition.

“Part of the work of identifying structural racism is to identify the places in our structures and our policies and our laws that leave folks marginalized and disempowered — principally people of color,” Seligman said.

“The conversations that we’re having about these issues now are very different from the conversations that people were having in the New Deal … but the same structures are still there,” he added, “and they’re continuing to disempower and disadvantage immigrants and people of color.”

The bill would cover all agricultural workers, regardless of immigration status, Seligman noted, including undocumented workers and those on H-2A temporary worker visas. According to the U.S. Department of Labor’s National Agricultural Workers Survey, approximately 75% of farmworkers in the U.S. are foreign-born.

Supporters of the bill include Colorado AFL-CIO, the National Young Farmers Coalition, the Colorado Immigrant Rights Coalition, Project Protect Food Systems Workers, FrontLine Farming, Colorado Organization for Latina Opportunity and Reproductive Rights, the Hispanic Affairs Project, Colorado Jobs with Justice, Colorado People’s Alliance, Conservation Colorado and United for a New Economy.

But the legislation faces opposition from agricultural industry groups, including the Colorado Farm Bureau, Colorado Cattlemen’s Association, the Colorado Association of Wheat Growers, the Rocky Mountain Farmers Union and the Colorado Sugarbeet Growers Association.

In a statement to Law Week, Colorado Farm Bureau President Carlyle Currier called the bill “too broad and far-reaching” and said the organization is concerned about its potential impact on “the family farms, employees and supply chain that rely on flexibility at work.”

“Working in agriculture is unlike any other industry. There is no doubt, farming is hard work, but it’s also very rewarding,” Currier said. “There’s no other lifestyle where you get the feeling of bringing in the last of a crop, caring for livestock or helping birth a calf.”

“But, sometimes you’re also harvesting crops to beat a hailstorm, gathering the flock to shelter them from the coming blizzard or watching a snap freeze destroy everything you’ve worked all year for,” Currier said, and working at the mercy of the weather sometimes requires quick adjustments and unpredictable days.

“The industry also doesn’t have the ability to set the price for our products, profits are set by the market and out of our control,” the statement said. “Family farms won’t be able to adapt to these onerous new regulations, likely resulting in fewer hours for employees, loss of the job itself and difficulty recruiting others.”

Agricultural industry newspaper The Fence Post reported Feb. 19 that agriculture trade groups were displeased they didn’t have the opportunity to review or weigh in on the bill, which was introduced in the Senate on Feb. 16 and is scheduled for its first committee hearing on March 17.

Colorado Cattlemen’s Association Executive Vice President Terry Fankhauser called the bill “an egregious attack on agriculture” that will “also harm other labor employers,” according to The Fence Post.

But Seligman said that framing the issue in a way that pits workers against business “dramatically mischaracterizes the terms of the debate,” adding that the coalition supporting SB21-087 has brought small farmers and workers together to “hopefully create a workplace and a marketplace that’s fairer and more equitable.”

FrontLine Farming, a food and farmers advocacy organization, is one of the supporters of the bill. “I’m supporting this because I am a farmer, because my own family are immigrants,” said FrontLine Farming co-founder and executive director Fatuma Emmad. “Because I see what it means to have access, [and] because I know what the struggles are to have land access.”

“When I see farmers and workers who work seven days a week from morning till night and still don’t have enough to sustain themselves and their children, there’s something wrong with the system,” she said.

“We recognize that farming and growing food shouldn’t be at the cost of exploitation of other human beings … This bill isn’t really something that’s asking for much more than basic standards that we see being asked for most other people.”

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