Ag labor bill portions head to rulemaking amid contentious pleas and fierce rhetoric
Colorado Gov. Jared Polis is expected to sign SB 21-87, known as the Farm Workers Bill of Rights, though much of the content will be decided through the rulemaking process.
The rulemaking process will likely begin in late summer with the Colorado Department of Labor posting a stakeholder meeting or meetings. According to Garin Vorthmann, a partner at Colorado Legislative Strategies, and a contract lobbyist for the Colorado Farm Bureau, input will be gathered to guide draft language. Once the rule is noticed officially by the department, additional stakeholder processes begin prior to a rule being proposed and reviewed by the Attorney General. The rule is likely to be finalized in October and will be implemented according to the rule but at the earliest, in January.
Vorthmann said even though sending portions of the statute to rulemaking is a risk without parameters set in statute, it is positive for agriculture stakeholders. As the bill approached a vote, she said agriculture groups lacked the votes to strike down a 40-hour workweek threshold, with regards to overtime pay, which would have been devastating to the industry.
“Moving it to rulemaking affords agriculture the opportunity to illustrate to the department the flexibility needed and the justification for a higher threshold,” she said. “They’ve indicated that they understand we are a unique industry with different issues that must be taken into account like the seasonality of crops and the weather.”
Vorthmann said she is cautiously optimistic that agriculture employers will have a level playing field in the rulemaking process. She also said Gov. Polis was instrumental through his opposition of the 40-hour week threshold and worked behind the scenes to send this overtime portion to rulemaking with the flexibility needed by agriculture employees in mind.
HEAT STRESS PROVISIONS
The portions of the statute that will go through rulemaking also include the heat stress provisions, the access by key service providers. Heat stress provisions include shade and water requirements, lengths, the type of shade required, and at what temperature. One amendment added by the House Republicans that was accepted unanimously on second read is an exemption to the meal and rest break provision for livestock haulers and custom harvesters.
The term key service providers, she said, is nuanced as it includes promotoras (individuals who are not licensed healthcare professionals, but serve as resources to assist the migrant community with healthcare needs), clergy, government officials and others identified in the bill. The bill allows for the employee to access key service providers during the time they’re off duty if they reside in employee-owned housing. The rulemaking process will determine the framework of on-duty visitation by service providers to maintain safety and biosecurity.
When the bill was introduced, it contained what Vorthmann calls the relater provision, that gave — for the first time in labor law — a third party the ability to file a complaint on behalf of the worker if they had reason to believe workplace violations occurred.
“It was vague, broad, and concerning,” she said. “In speaking with the business lobby, we learned they had seen similar provisions proposed in recent bills but it was always stricken. It’s essentially a whistleblower on steroids with the third party serving in no official capacity to either the employer or employee.”
This portion was removed during review by the Senate business committee, and was a win for all business as she said it would have set a dangerous precedent. On the floor, an amendment was added that allows for an agricultural worker representative. This representative is identified in sealed court documents and is able to file a complaint on behalf of the employee and is able also to receive damages and go straight to court. In the House, Vorthmann said opponents argued that this portion of the bill is different than any other industry in the state, and by skipping the administrative process, the employee would be forced to retain an attorney. Speaker Garnett, she said, was instrumental in working with the bill sponsors to remove this portion in committee. Going to district court with complaints is still an option, but not required and there is language in the bill to ensure that the employee receives the settlement funds.
As earlier reported by The Fence Post magazine, the bill was introduced without the input of stakeholders. On June 8 prior to a vote on the Senate floor to concur with the House version, Danielson criticized House changes that keep wages for range workers below the minimum wage.
“The historic exclusions of farmworkers from the equal treatment of our laws is bad policy and it’s racist, and the right to overtime protections is a fundamental right of workers in this state,” Danielson said.
Prior to passage on third reading before the Senate, Sen. Jerry Sonnenberg, R-Sterling, told the floor that a number of issues are left unaddressed. Single occupancy housing remains a requirement of the bill while federal grazing leases require a two-person management team and a single housing unit, he said. Sonnenberg also said federal guest worker contracts outline wages which include and are based upon long hours so common in harvest situations. The courts, he said, will have to determine how the bill and the federal guest worker contracts will work in tandem.
“I also want to explain to you a little bit about how agriculture works,” he said. “A break after four hours would be nice, but if I am running a combine and I’ve been there four hours and the grain cart guy is sitting there waiting to finish the load so the truck can get to the elevator, if those breaks don’t coincide- and they never do — it makes it difficult for us to do business.”
The bill, he said, shows a lack of understanding of the agriculture industry. It also illustrates the elected body’s belief that they as a whole know better what is good for agriculture and for workers, than those experts within the industry. He called it the most devastating agriculture bill he has seen.
“This will have the largest impact on agriculture, and for most of you it won’t matter but for those on marginal incomes who will see food price increases, the vegetable costs will increase to cover the labor, those are the people who are going to be hurt,” he said. “It’s frustrating the ag community couldn’t stay arm in arm on this, as it probably has the most impact on any bill I’ve seen in the past 15 years. That being said, what’s important for you to realize, is we are causing more damage than we are fixing a problem.”
Sonnenberg said this bill creates the scenario of some producers opting to no longer grow labor intensive crops, leaving the workers who have traditionally come to the state for the very purpose of working long hours over a short period of time without that opportunity, driving producers and laborers to seek opportunities in other states. Sonnenberg asked for a no vote to retain ag workers, keep agriculture viable in the state, and to keep food prices from increasing. Sen. Don Coram, R- Montrose, called the bill a “stake in the heart of agriculture in Colorado” wrought with unintended consequences.
Danielson claimed the concessions made to make the bill workable to industry were numerous and the bill is about the denial of basic human rights in the agriculture industry.
“Agriculture is not only land-owning employers,” she said. “There are 50,000 workers in this state that drive this multi-billion-dollar industry. Fifty-thousand people and very few of them are employers, business owners, landowners. The overwhelming majority of the agriculture industry are the workers who drive it.”
Danielson told the Senate that the business, corporate agriculture lobby would like them to believe that agriculture consists of landowners and employers alone.
“If you had paid attention to even a fraction of the testimony that was in committee on this bill, you would be as embarrassed of the (agriculture) industry as I am,” she said.
The bill passed narrowly with the House amendments and has since been sent to the governor.
In an article by Tina Vasquez, a senior staff writer at The Counter focusing on immigration, gender, and food systems, Fatuma Emmad, a farmer and the co-founder and executive director of the food and farmers advocacy group Frontline Farming, said farmers of color who supported the bill were regularly dismissed by farmers, ranchers, and legislators, and that white farmers who opposed the bill told her she made them feel “unsafe.”
Vasquez called Emmad one of the most recognized advocates for farmers of color in the state, and said according to Emmad, “there can be a lot of disagreement in Colorado’s farming communities regarding policy — most notably when it comes to regenerative versus conventional farming. Usually these splits are between younger and older farmers, and as an advocate and educator, Emmad said she tries to bridge these conversations through education. But she did not anticipate how contentious the battle around SB 87 would become, or that young farmers she thought of as allies would oppose the bill.”
“There was just a crazy amount of racism surrounding this bill and it was disturbing to see young farmers and regenerative ag people who have all of these ethics for land have none for how they treat their people,” Emmad said. “I’m glad this bill passed, and I’m going to keep saying what I’ve been saying all along: This isn’t about identity politics. This is about better farming. This is about a better, safer world and about addressing what’s happening on farms by actually protecting the people doing this work.”
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