Ag labor law updates
Kevin Paul, a labor and employment attorney with 30 years of experience and the leader of Dairy Farmers of America told Colorado Livestock Association members that “times, they are a’changin’” when it comes to ag labor law. Gone are the days, he said, when ag employers could keep an eye on federal laws alone. The trend of state laws dictating overtime, minimum wage, and collective bargaining is making its way across some states, including Colorado, Montana and South Dakota.
In the past, many employers either on a job application or in an interview, inquired about the person’s pay history which is now prohibited under the 2019 state Equal Pay for Equal Work Act. He recommends that employers review applications to ensure it does not include questions about pay history. Under 2020’s Healthy Families and Workplaces Act, mandated paid leave includes all employers beginning Jan. 1, 2022. This law requires employees to accrue one hour of sick leave for every 30 hours worked. This statute also includes a 48-hour cap for annual use and carry over. He recommends the sick leave be awarded up front, as there is no waiting period in the statute.
SB21-087, the Farm Worker Bill of Rights, carries a number of new obligations for farm families that employ laborers.
Paul said he never received a good answer with regard to the need for a law specific to agriculture and retaliation. Any complaint about working conditions — wages, break times, treatment — could give rise to charges, including complaining publicly can not be met with retaliation, including termination. Publicly complaining, he said, unequivocally includes social media posts. Adverse action in response to a public complaint can include termination, suspension, denial of a raise, denying time off, requiring them to work shifts they don’t like, and any other action with regard to their employment.
This statute, which applies only to agriculture employers, carries a 90-day presumption. Paul said that means any adverse action taken against the complaining employee within 90 days of their public complaint is considered retaliatory with the burden of proving otherwise.
This means, he said, if it is necessary to take action against a complaining employee within the 90-day window, an employer should have ample documentation in hand and may even consult an attorney to ensure they have things in order should the employee utilize the tools now available to them. Employees, under the statute, may either make a complaint to the Colorado Department of Labor and Employment, or file a state district court lawsuit. Given the expense and complication involved in filing a lawsuit, he anticipates the CDLE complaint will be the more likely route. This portion of the law is now in effect.
The second section of the statute allows employees to collective bargain, which previously exempted agriculture. Paul said other employers in the state are exempted up to eight employees, though agriculture employees fall under the statute with a single employee, another discrepancy he said he never received a good answer as to its justification.
Paul said very few states require agriculture employers to take part in collective bargaining, which is complicated. He recommends caution, especially if it appears labor unions are active in the community.
Colorado Agricultural employers are now required to pay the minimum wage which is currently $12.32, but will increase to $12.56 on Jan. 1.
“We know agricultural employers pay their employees well, they pay a living wage,” he said. “We also know we’re in competition with the oil and gas industry and the construction industry, so we have to pay well. We didn’t need a statute or law to tell us that, but we got one.”
Recordkeeping will also be important as it is now required that employers show how many hours employees work per day. Familiar with the dairy industry, Paul said it’s common to show the number of shifts an employee works but that has changed to hours with this statute. Employers must also be able to supply accessible earnings statements.
Overtime pay will not be required until November of 2022 when the standard will be 60 hours per week. In 2024, the proposed standard for small employers with less than $1 million in annual revenue will be 56 hours, highly seasonal workers will be 56 hours for 22 weeks of the year and 48 hours the remainder of the year. Other employees would fall under the standard of 54 hours, later dropping to 48 hours.
In his work with the dairy organization, the request has been made for a salary-based exemption in 2022 of $865.38 per week.
Under the new statute, employees are guaranteed 30-minute lunch breaks, 10-minute rest periods every four hours and 30-minute breaks during 12-hour shifts.
The statute also restricts the use of short-handled hoes, a rule that Paul said took a disproportionate amount of time and discussion.
Heat related restrictions were primarily sent to rule making and are not in place yet.
The access provision of the bill was, he said, hotly contested. The language reads “an employer shall not interfere with an agricultural worker’s reasonable access to Key Service Provider.” Paul said though reasonable to access to healthcare, for example, seems acceptable the remainder of the language — “…at any location during any time in which the agricultural worker is not performing compensable work…” leaves wide open a door to an employer’s private property.
The definition of key service provider is the portion of the statute he said is troubling as it could allow access to union organizers. While this bill was being debated in Denver, the U.S. Supreme Court heard Cedar Point Nursery v Hassid. The California strawberry nursery was accused of restricting access to union organizers under that state’s laws, which, he said are far more restrictive than SB21-087. The Supreme Court ruled in a 6-3 decision that those rules are unconstitutional, and the union organizers couldn’t access the private property under eminent domain laws. With that decision in mind, Paul and others are pursuing action against this provision though, for now, it remains in place.
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