Opponents testify that ag labor bill usurps existing federal guest worker protections
Colorado Sen. Jessie Danielson’s SB 21-087, known as the Farm Worker Bill of Rights, that was heard in the Senate Business, Labor, and Technology committee this week was amended.
Bonnie Brown, the executive director of Colorado Wool Growers Association testified in opposition of the bill and said it usurps the federal H2A regulations for guest workers creating a quagmire of conflicting and confusing state and federal regulations. She requested that the H-2A program be exempted, if this bill moves forward.
Brown said the current H-2A wage and regulatory framework was updated and approved under the Obama administration. The federal H-2A guest worker program already addresses wages, hours worked, housing, and other job requirements. Brown said SB21-087 is punitive against employers with a first option of remedy being district court, which ignores the existing framework to address worker grievances.
Perhaps the most frustrating aspect of the bill, she said, is the apparent role of Colorado Legislative Services in influencing its passage. Jennifer Rodriguez from CLS was present with Sen. Danielson, D-District 20, when she initially met with producer group representatives following the introduction of the bill and Rodriguez was the first to testify in favor of the bill in the hearing.
The conflict, Brown said, is that CLS receives federal funding and, according to a 2010 memorandum from Holsinger Law, Legal Services Corporation funds are not to be used to influence legislation at the state, local or federal level. The memo also said “funding recipients are not to engage in grassroots lobbying. Prohibited legislative and administrative activities include: (1) The passage or defeat of any legislation or constitutional amendment; (2) Any initiative, or any referendum or any similar procedure of the Congress, any State legislature, any local council, or any similar governing body acting in any legislative capacity.”
On Jan. 14, 2010, CLS released a report entitled Overworked and Underpaid: H2A Herders in Colorado. According to Brown’s written response that year, the report improperly portrayed range sheep operations in a negative light.
Anthony Theos is one of the lamb producers who would be harmed by this bill if it were to pass. Theos hires Peruvian herders through the H-2A program, some of whom have worked for the ranch for 30 years. This bill, he said, would increase his labor costs about 30 percent, in addition to the high cost of participation in the federal guest worker program, room and board, equipment, cell phones, certification fees, and other costs.
Theos said the 2010 CLS report was misleading, but once proponents visited ranches, spoke to the range workers, and met with agriculture stakeholders, the issue was better understood, leading to a resolution.
One positive amendment made, Brown said, was the striking of the “relator” clause, which she said is unprecedented in Colorado labor law, and encourages frivolous lawsuits against employers.
“SB21-087 ignores the important role that Colorado Department of Labor and Employment (CDLE) has in protecting both workers’ and employers’ rights; and attempts to enshrine in statute, items that can be addressed through the CDLE rulemaking process,” she said. “SB21-087 is overly prescriptive. Cementing into statute, items such as break times, precludes any commonsense adjustments needed that are specific to individual business operations. That is what a rule making process is for.”
According to Brown, this bill ignores private property rights, and the liability and biosecurity dangers created by open access.
“It is surprising that with the elevated concern about COVID and social distancing, that a bill is being pushed that jeopardizes the safety of our front-line ag workers,” she said. “Agricultural employers are already strained by ongoing drought conditions, and the continuing rise of production costs such as labor, fuel, transportation and insurance. The net effect of significant additions of labor costs to ag employers will be more family farms and ranches being sold to developments and loss of jobs for ag workers.”
Brown said protecting the rights of employers is equally important, so they can continue providing jobs to people that are not self-employed, and provide a safe and healthy food and fiber supply. The U.S. Department of Labor, Wage, and Hour Division already has regulatory authority regarding worker complaints, and procedures exist to protect a worker’s identity to prevent retaliation, and where workers can file complaints.
A significant concern is the demanding open access to private property, a concern shared by a number of opponents of the bill, including peach producer Bruce Talbott. Talbott raises peaches and apples in Palisade, Colo., in an area known for the coveted summer treats. Talbott has expanded his operation to include soft and hard ciders and a tasting room. For Talbott, peach harvest means international workers who are willing to do the difficult work and it is mostly the same group who return year after year.
The bill, he said, asks for everything. Talbott was among representatives of agriculture groups who met with Sen. Danielson after the bill was introduced. During the meeting, he said Danielson was hostile toward the stakeholder groups.
Though many points of the bill are troubling, Talbott said the collective bargaining piece is at the top of his list. Talbott said California farm workers have the ability to unionize, but only 1 percent have.
Danielson has refused multiple attempts for comment.
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